Upholding the first sale doctrine

Posted Mar 22, 2013 19:08 UTC (Fri) by giraffedata (guest, #1954)
In reply to: Upholding the first sale doctrine by cladisch
Parent article: 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.

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).

Upholding the first sale doctrine

Posted Mar 22, 2013 19:21 UTC (Fri) by mjg59 (subscriber, #23239) [Link]

"I don't see how that entitles you to get source code from that person"

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.

Upholding the first sale doctrine

Posted Mar 22, 2013 19:23 UTC (Fri) by dark (guest, #8483) [Link] (1 responses)

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".

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.

Upholding the first sale doctrine

Posted Mar 23, 2013 3:09 UTC (Sat) by giraffedata (guest, #1954) [Link]

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".

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?