Upholding the first sale doctrine
Upholding the first sale doctrine
Posted Mar 21, 2013 9:10 UTC (Thu) by bootc (subscriber, #87532)In reply to: Upholding the first sale doctrine by jezuch
Parent article: Upholding the first sale doctrine
Posted Mar 21, 2013 9:49 UTC (Thu)
by anselm (subscriber, #2796)
[Link]
If a device includes binary code derived from source code distributed under the GPL, that code (and by extension, the device containing it) can only be distributed if either (a) the source code is included with the binary, or (b) the vendor offers, in writing, to give the source code, under the GPL, to »any third party« (GPLv2) or »anyone possessing the object code« (GPLv3). In the first case, there is no problem because buyers of the device already have all they need. In the second case, there isn't a problem, either, since the offer also applies to second-hand buyers of the device. (The only problem with the second case is for second-hand buyers who buy the device after the time limit on having to offer the source code has expired.)
Posted Mar 21, 2013 9:58 UTC (Thu)
by cladisch (✭ supporter ✭, #50193)
[Link] (5 responses)
I don't think that reselling makes is possible to lawfully remove the GPL source code requirements.
Reselling does not give the new owner more rights than the original owner had (for example, if an EULA forbids reselling, reverse engineering, benchmark publications, etc., then the first-sale doctrine makes the reselling restriction invalid, but after a sale, the new owner is still bound by any other lawful restrictions).
If somebody has a GPL binary, the source code or the source code offer is included. If he then resells this software, the *removal* of the source code (offer) would be a modification of the software which happens before the sale and which is forbidden by the GPL.
Also, making *copies* is a different right to which the first-sale doctrine does not apply.
Posted Mar 22, 2013 19:08 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (3 responses)
I don't think that works. What you're distributing is the text of an offer - the words that memorialize an offer, not an offer per se. It isn't like a negotiable instrument (e.g. a bank check), where the writer of it is obligated to whomever ends up in possession.
It does seem to me that first sale doctrine defeats the intent of the GPL, at least to the extent you can distribute physical copies. I don't need any permission from Harald Welte to give you my Red Hat CD. Ergo any conditions under which Harald offered me a license to give it to you are irrelevant. On the CD, you'll find evidence that someone once offered to give me source code, but I don't see how that entitles you to get source code from that person, and it definitely doesn't entitle you to get it from me.
Likewise, EULAs don't propagate. An EULA is a contract in which I promise to do certain things in exchange for Microsoft giving me a copyright license. If I give my Windows CD to you, you're not obligated in any way under my contract with Microsoft. (It's true that I might have promised Microsoft not to give you my CD, or not to do so unless you made all the same promises, but the fact that I broke that promise doesn't affect your obligations).
Posted Mar 22, 2013 19:21 UTC (Fri)
by mjg59 (subscriber, #23239)
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GPL 3(b): "Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code"
The more interesting case is if the work was originally distributed under 3(a) and you received a binary CD and a separate source CD. Selling the binary CD on its own would cause the recipient to have problems.
Posted Mar 22, 2013 19:23 UTC (Fri)
by dark (guest, #8483)
[Link] (1 responses)
Perhaps the third party won't be able to enforce this directly, but if the offer isn't honored then the copyright holder will have an issue to raise about the original distribution.
Posted Mar 23, 2013 3:09 UTC (Sat)
by giraffedata (guest, #1954)
[Link]
That does seem to take care of it; thanks.
But it also runs into another thing that has always made me uneasy about GPL: causality. The condition is that you make the offer, not that you honor it in the future. You meet the conditions of the license by including the offer with your copy, thus you're licensed to make that copy. You meant it at the time, but two years later, someone attempts to take you up on your offer and you say, "bite me." Does that mean your offer is retroactively not genuine and you retroactively didn't have permission to make the copy and we rewrite history?
Posted Mar 26, 2013 9:12 UTC (Tue)
by ras (subscriber, #33059)
[Link]
I suspect we Australian citizens are going to put that to the test. We currently pay up to twice what you do in the US to download the same software from servers in the US. For more expensive products it is actually cheaper to fly to the US and buy it there. This includes gaming software from Valve.
Just so you know how bad it is, I'll quote from this URL http://au.news.yahoo.com/thewest/a/-/news/16114230/ :
> Australians pay on average 73 percent more on iTunes downloads than the United States, 69 percent more on computer products and a staggering 232 percent more on PC game downloads.
We are collectively so pissed off but this there was a Federal Government inquiry into it, where they summoned people from Microsoft, Adobe and so on for a "please explain". They were refreshingly honest. Except for Apple, their answer was "because we can". Apple was the one exception. As much as it pains me to say this, their hardware has a reasonable markup explained by taxes and Australia's enforced warranty provisions. iTunes was because pricing is determined by the Music industry, not Apple.
The end result of all this publicity? Have you every seen HOWTO's on proxies and laundering Australia Dollars do the look like US dollars in popular discussion forums? I hadn't, until now.
Posted Mar 21, 2013 19:21 UTC (Thu)
by Aliasundercover (guest, #69009)
[Link] (14 responses)
I have read some arguments that strong first sale rights can be used to subvert the copyleft properties of the GPL. It goes something along the lines of obtaining a stream of physical copies of GPL works, then modifying each one and distributing it without the source code of the modification. I can't say I fully understand the argument but the people who put it forward claim first sale exposes the GPL to being bypassed. I don't credit it. Even if I did I think the issue is freedom and the freedoms we get from first sale are more important than defending against a hack on the GPL.
It is good to see the Supreme Court do something right. Only 3 votes for utter insanity is good for them lately.
Posted Mar 22, 2013 0:20 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (13 responses)
Remember that the job of a Supreme Court Justice is not to decide what is sane (or what you really meant -- what is right). It's to decide what the law is.
The fact that Wiley's lawyers, a district court, an appeals court, and 3 Supreme Court Justices thought First Sale doesn't apply to foreign-made copies tells me there is probably some clearly written statute or binding precedent somewhere that says that, the US Congress was happy with it, and 6 justices bent over backward to interpret it as not meaning what it seems to. I wouldn't necessarily cheer them on for that.
I'm just saying a court's job is a lot harder than just deciding what the world should be like.
Posted Mar 22, 2013 1:56 UTC (Fri)
by Aliasundercover (guest, #69009)
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Posted Mar 22, 2013 9:12 UTC (Fri)
by dvdeug (guest, #10998)
[Link] (11 responses)
Posted Mar 22, 2013 15:40 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (10 responses)
I don't have time to read the decision (note that it took 33 pages for the court majority to explain why First Sale does apply to foreign-made copies; a concurring judge spent 4 more pages saying First Sale does apply, but for a different reason, and the minority took 33 pages to explain why First Sale doesn't apply. So it does not seem like a trivially obvious result that one of us could just criticize off-hand), but I read the first page and this is the argument that First Sale does not apply to foreign-made copies:
Rights to prevent copying come from the US copyright statute. That statute says those rights don't cover simply transferring ownership of a copy made "lawfully under this title." (That is the First Sale doctrine). The US copyright statute has nothing to do with copies made in Thailand; it cannot be said that those copies were made "under this title," ergo the First Sale limitation to copyright does not apply.
Obviously, the other way to look at it is that the copies made in Thailand did not violate the US copyright statute, so they were lawful under that statute.
So it takes 33 pages to delve deeper into it, look at the rest of the title, previous decisions, history of the law, etc. to figure out which version Congress meant. Going only on the LWN article and the first page of the decision, I wouldn't even venture to guess.
Posted Mar 22, 2013 18:02 UTC (Fri)
by Aliasundercover (guest, #69009)
[Link] (1 responses)
Find the time to read the documents and risk raising your own cynicism. Or don't and preserve your bliss. Pages mean nothing.
Posted Mar 23, 2013 9:42 UTC (Sat)
by dvdeug (guest, #10998)
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Cynicism hides reality at least as badly as any other simplistic philosophy. If you're not interesting in taking reality as she is, at least don't harass those of us who are trying.
Posted Mar 24, 2013 11:52 UTC (Sun)
by kleptog (subscriber, #1183)
[Link] (3 responses)
He suggested that the supreme court had erred in a previous related case where if that had gone the other way market segmentation would have been possible without neutering the first-sale doctrine.
As usual, the ball is really with the legislature to fix the law so that it says what they intended, rather than having judges try to guess.
Posted Mar 26, 2013 0:31 UTC (Tue)
by nix (subscriber, #2304)
[Link] (2 responses)
Posted Mar 28, 2013 16:46 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (1 responses)
Jealousy is a terrible reason for doing things, and one thing our unelected House did very well - precisely *because* they were unelected - was to go through legislation with a toothcomb and make sure that it was reasonable legislation.
Once we've lost it, I doubt we'll get it back ...
Cheers,
Posted Mar 28, 2013 17:04 UTC (Thu)
by BlueLightning (subscriber, #38978)
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Posted Mar 31, 2013 11:40 UTC (Sun)
by wtanksleyjr (subscriber, #74601)
[Link] (3 responses)
As far as I can tell, that was the heart of the publisher's case. And it's enormously silly. Yes, that's the text -- but what did the text mean? That is, what exactly is being EXCLUDED? What isn't allowed to be resold without permission? The answer is simple -- it's _illegally produced_ copies.
Posted Apr 2, 2013 2:58 UTC (Tue)
by giraffedata (guest, #1954)
[Link] (2 responses)
And that was the heart of the importer's case.
For the people who know a lot more about copyright than we do, the answer was not simple. Multiple learned judges came to the opposite answer, and were able to back it up with thousands of words of explanation. Other learned judges arrived at the same answer as you, but respected the alternative logic enough to take thousands of words to explain why their own logic beats it.
Though I didn't read the arguments, it is not hard for me to believe that Congress might have meant to exclude some legally produced copies from that paragraph. If Congress really meant something that simple, why didn't Congress just say it? Why write about a copy made "lawfully under this title" instead of just "lawfully"?
I haven't seen this particular phrasing before, but I have seen lots of statutes that talk about things done "under this section" that incontrovertibly refer to the things that are made legal by operation of that particular section, and not by anything else.
Posted Apr 2, 2013 11:44 UTC (Tue)
by hummassa (subscriber, #307)
[Link] (1 responses)
There is a principle in how to interpret the law that says (translated from my native Portuguese) "no comma is wasted in the law text". This principle, alone, is enough to justify interpreting "lawfully under this title" from "lawfully", where the latter should mean "under the effect of any law source" and the former, "under the effects described in this specific title only".
IANAL, TINLA, just a former paralegal.
Posted Apr 2, 2013 16:25 UTC (Tue)
by giraffedata (guest, #1954)
[Link]
Upholding the first sale doctrine
Upholding the first sale doctrine
(see http://en.wikipedia.org/wiki/First-sale_doctrine#Applicat...)
Upholding the first sale doctrine
If somebody has a GPL binary, the source code or the source code offer is included. If he then resells this software, the *removal* of the source code (offer) would be a modification of the software which happens before the sale and which is forbidden by the GPL.
Upholding the first sale doctrine
The GPL foresaw this :) Version 2 says the offer should be to give the source to "any third party", and version 3 says "anyone who possesses the object code".
Upholding the first sale doctrine
Upholding the first sale doctrine
The GPL foresaw this :) Version 2 says the offer should be to give the source to "any third party", and version 3 says "anyone who possesses the object code".
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
Only 3 votes for utter insanity ...
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
As usual, the ball is really with the legislature to fix the law so that it says what they intended, rather than having judges try to guess.
But that requires legislators to read the laws before they pass them, rather than just taking whatever the lobbyists wrote and jamming it through on a $PARTY ticket. (This is not universal, but is depressingly common in both the US and EU.)
Upholding the first sale doctrine
Wol
Upholding the first sale doctrine
Upholding the first sale doctrine
Upholding the first sale doctrine
The answer is simple -- it's _illegally produced_ copies.
Upholding the first sale doctrine
I don't know an aphorism for it in US law, but the same concept exists. All words must be given meaning. It produces some results that are maddening for a mathematician, like: a lease contract says all payments under the lease must be paid by the 5th of the month. In another section, it says utility payments must be made by the 15th of the month. To a mathematician, these two statements are consistent and mean that utility payments must be made by the 5th of the month. But a judge would read the utility payments to be an exception, because otherwise the words about the 15th would be superfluous.
Upholding the first sale doctrine