Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model [LWN.net]

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 13:59 UTC (Mon) by anselm (subscriber, #2796)
In reply to: Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model by Wol
Parent article: Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

The rules are different for physical objects (like books or CDs) vs. “digital content”, such as software you download. If you obtain a copy of a copyrighted work as a physical object (book, CD, USB thumb drive, …), you get to dispose of that particular object as you please (including defacing it, selling it on, etc.), but your ownership of the copy doesn't let you make copyright decisions concerning the original work (such as making and selling more copies, or commissioning a movie based on (the content of) a book). The legal doctrine is called “copyright exhaustion”.

OTOH, whether copyright exhaustion applies to digital copies of a work is unclear. For example, if you download a musical recording as an MP3 file, according to copyright law you don't get to sell that recording to someone else, because that sale would result in the creation of an extra copy (even if you later remove your own copy of the file), and the creation of extra copies remains the copyright holder's prerogative. The same reasoning would apply to “defacing” an MP3 file – this would usually result in unauthorised copies being produced, and hence not be allowed, modulo the “fair use”-type provisions that exist in certain jurisdictions. (It has been long established that, e.g., the fact that a piece of software must be copied from secondary storage into RAM in order to execute it is irrelevant as far as copyright is concerned, but that of course doesn't give you blanket permission to make extra copies in order to “deface” it.)

to post comments

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 15:07 UTC (Mon) by Wol (subscriber, #4433) [Link] (1 responses)

> if you download a musical recording as an MP3 file, according to copyright law you don't get to sell that recording to someone else,

I think copyright law has changed ... which is how you can buy eg OEM copies of Windows and stuff.

European law now explicitly lets you sell on digital copies, on condition you destroy your original copy. I don't know the details, but I do remember something of the sort a good few years ago.

I know MS is unhappy, but if they discover you are selling on OEM copies, all they can do is refuse to do any further business with you (that's how I've obtained most of my recent copies of Windows).

Cheers,
Wol

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 11, 2023 11:03 UTC (Tue) by kleptog (subscriber, #1183) [Link]

> European law now explicitly lets you sell on digital copies, on condition you destroy your original copy. I don't know the details, but I do remember something of the sort a good few years ago.

So I was thinking of writing something similar yesterday but figured I'd add sources for this claim... and came up blank. In fact, I found the opposite, namely the Tom Kabinet case before the ECJ which ruled that if you offer a site that allows people to download a copy of an e-book that that counts as distribution, even if you claim you're deleting your copy directly after the download. It doesn't help that in the EU software copyright and other copyrights are not handled the same way, see [1]

At a national level, similar cases where people selling an ebook to someone else by physically handing over media containing the ebook however have ruled the other way. Software copyright is regulated under the Software directive, and e-books under the InfoSoc directive. If you buy an MS Windows installation CD secondhand, MS cannot deny you downloading updates just because you weren't the first owner.

I think this is the reason why so many software businesses are moving over to subscription models because by offering a time-limited service, resale can simply by prohibited by contract law rather than relying on copyright law. Just like with Netflix & Spotify, since you never buy it, it can't be resold either.

[1] https://academic.oup.com/grurint/article/69/5/489/5854748