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Re: [upcoming] The European Court of Justice on 'Software' First Sale

From: Tim Jackson
Subject: Re: [upcoming] The European Court of Justice on 'Software' First Sale
Date: Fri, 28 Sep 2012 19:42:03 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Fri, 28 Sep 2012 12:59:59 +0200, Alexander Terekhov wrote...
> Thus copies made under copyleft (and other public licenses) fall under
> exhaustion doctrine preventing copyright owners (licensors) using tort
> theory (copyright infringement claims) regarding control of terms and
> conditions for further distribution.
> Got it now?

Unfortunately, I think you've not got the European exhaustion doctrine.  

For traditional copies of non-electronic works, and for music CDs, DVDs 
of films, etc, once a copy has been place on the EU market with the 
copyright owner's consent, the owner's rights in **that particular 
copy** have been exhausted.  He can't prevent onward transfer of **that 
particular copy** throughout the EU.  

So if you've bought a copy, you can transfer it to someone else, e.g. 
give it away or sell it secondhand.  

But the copyright owner's right to control the making and distribution 
of **further** copies is not exhausted.  If you make a further copy 
without permission, that still infringes the copyright.

The latest CJEU decision extends that for licensed software.  If you 
have a licensed copy of non-free software, you can transfer or sell your 
licence secondhand.  Importantly, the subsequent purchaser can make a 
copy so he can use it - the copyright owner can't prevent that.  

But you have to make your copy unusable after you've transferred the 
licence.  And the copyright owner **can** prevent both you and the 
subsequent purchaser making and distributing **further** copies.  Those 
would still infringe the copyright.

And that's it.  The new purchaser has the same rights you did, no more.  
This is the same as if you sold your copy of a music CD.  Neither you 
nor the subsequent purchaser can make and distribute further copies of 
the CD.

Now apply that to copylefted software.  If you transfer it to 
someone else, and make your copy unusable, the new user can make the 
necessary copy so he can use it.  But the CJEU decision doesn't 
give the new user any new rights to distribute further copies.

So for both you and the new user, your only right to distribute further 
copies comes from the terms and conditions of the copyleft licence.

I think you may be looking at the part of the decision which says that 
the copyright owner can't require the subsequent purchaser to sign the 
licence.  But a copyleft licence doesn't require signature anyway.  If 
you make copies, it's implied that you accept the terms.  

Put another way, the CJEU decision doesn't give anyone a right to make 
further copies, beyond the one needed by the subsequent purchaser to use 
the software.  In the case of copylefted software, if a person to whom a 
copy has been transferred does make and/or distribute further copies, it 
must be implied he did so under the terms of the copyleft licence.  He 
can't get the necessary right to do so any other way.

Tim Jackson
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