Comments on: The First Sale Doctrine and Copyleft http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/ Keeping politicians' hands off the Net & everything else related to technology Tue, 14 Feb 2012 12:51:08 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: DioGratia http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-65219 DioGratia Fri, 15 Aug 2008 04:05:35 +0000 http://techliberation.com/?p=11948#comment-65219 <p>LarsG,<br><br>It doesn't appear to be copyright infringement for the act of loading a copy of software for execution, otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:<br><br>(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:<br><br>(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or <br> ...<br><br>Vault v. Quaid appears primarily involved with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid. <br> <br>§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).<br><br>Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.<br><br>IANAL, etc.</p> LarsG,

It doesn't appear to be copyright infringement for the act of loading a copy of software for execution, otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
…

Vault v. Quaid appears primarily involved with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid.

§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).

Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.

IANAL, etc.

]]> By: DioGratia http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43657 DioGratia Fri, 15 Aug 2008 00:05:35 +0000 http://techliberation.com/?p=11948#comment-43657 <p>LarsG,<br><br>It doesn't appear to be copyright infringement for the act of loading a copy of software for execution, otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:<br><br>(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:<br><br>(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or <br> ...<br><br>Vault v. Quaid appears primarily involved with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid. <br> <br>§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).<br><br>Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.<br><br>IANAL, etc.</p> LarsG,

It doesn’t appear to be copyright infringement for the act of loading a copy of software for execution, otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
…

Vault v. Quaid appears primarily involved with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid.

§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).

Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.

IANAL, etc.

]]> By: dio gratia http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43647 dio gratia Thu, 14 Aug 2008 22:57:03 +0000 http://techliberation.com/?p=11948#comment-43647 <p>@LarsG</p> <p>Actually, the act of loading a program into memory doesn't appear to be copyright infringement otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:</p> <p>(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:</p> <p>(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or ...</p> <p>Vault v. Quaid appears primarily concerned with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of that allowed by copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid.</p> <p>§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).</p> <p>Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.</p> <p>IANAL, etc.</p> @LarsG

Actually, the act of loading a program into memory doesn’t appear to be copyright infringement otherwise requiring a license. 17 USC § 117. Limitations on exclusive rights: Computer programs:

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or …

Vault v. Quaid appears primarily concerned with the conflict between state law and §117, wherein the state law gave authority in a contract of adhesion in excess of that allowed by copyright law (perpetual ban on making copies, versus lifetime of the author plus 50 years). Archival copies were found to be non-infringing under §106 as allowed by §117(a)(2), and the contract of adhesion (read EULA) was found to be invalid.

§117 can be described as maintaining the balance of rights between the copy owner and the copyright holder when viewing the intended use of software, where transient or incidental copies are required by the technology. Peak vs. MAI addressed balance issues, and may have resulted in a 1998 amendment to §117 to provide for copies for repair purposes, the issue being that the repairer was not the owner of the copy as specified in §117 (a)(1).

Neither case affected the rights of the owner of legal copy of a software to load the software into memory for execution.

IANAL, etc.

]]> By: LarsG http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43649 LarsG Thu, 14 Aug 2008 19:56:43 +0000 http://techliberation.com/?p=11948#comment-43649 <p>"The reason that ruling was wrong is that (contrary to software companies’ claims) shrink-wrapped software is sold, not licensed, and so under the first sale doctrine no license is required to use it."<br><br>Unfortunately, there seems to be legal precedent that a license is required for using/running software (i.e., the act of loading a copy of the software in the PC's RAM). I think it was Peak vs MAI or Vault vs Quaid. In any case, it is a very bad situation since it effectively provides software makers with the hook/"consideraton" required to make EULAs stick; the act of simply running the software requires a license.<br><br>The situation in Europe is different, EU (C) has a clear exemption saying that whoever possesses a legal copy has the right to make additional copies (i.e., copy to RAM, install to HD) for the purpose of using the software.</p> “The reason that ruling was wrong is that (contrary to software companies’ claims) shrink-wrapped software is sold, not licensed, and so under the first sale doctrine no license is required to use it.”

Unfortunately, there seems to be legal precedent that a license is required for using/running software (i.e., the act of loading a copy of the software in the PC’s RAM). I think it was Peak vs MAI or Vault vs Quaid. In any case, it is a very bad situation since it effectively provides software makers with the hook/”consideraton” required to make EULAs stick; the act of simply running the software requires a license.

The situation in Europe is different, EU (C) has a clear exemption saying that whoever possesses a legal copy has the right to make additional copies (i.e., copy to RAM, install to HD) for the purpose of using the software.

]]> By: LarsG http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43531 LarsG Thu, 14 Aug 2008 18:56:43 +0000 http://techliberation.com/?p=11948#comment-43531 <p>"The reason that ruling was wrong is that (contrary to software companies’ claims) shrink-wrapped software is sold, not licensed, and so under the first sale doctrine no license is required to use it."</p> <p>Unfortunately, there seems to be legal precedent that a license is required for using/running software (i.e., the act of loading a copy of the software in the PC's RAM). I think it was Peak vs MAI or Vault vs Quaid. In any case, it is a very bad situation since it effectively provides software makers with the hook/"consideraton" required to make EULAs stick; the act of simply running the software requires a license.</p> <p>The situation in Europe is different, EU (C) has a clear exemption saying that whoever possesses a legal copy has the right to make additional copies (i.e., copy to RAM, install to HD) for the purpose of using the software.</p> “The reason that ruling was wrong is that (contrary to software companies’ claims) shrink-wrapped software is sold, not licensed, and so under the first sale doctrine no license is required to use it.”

Unfortunately, there seems to be legal precedent that a license is required for using/running software (i.e., the act of loading a copy of the software in the PC’s RAM). I think it was Peak vs MAI or Vault vs Quaid. In any case, it is a very bad situation since it effectively provides software makers with the hook/”consideraton” required to make EULAs stick; the act of simply running the software requires a license.

The situation in Europe is different, EU (C) has a clear exemption saying that whoever possesses a legal copy has the right to make additional copies (i.e., copy to RAM, install to HD) for the purpose of using the software.

]]> By: Don Marti http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43648 Don Marti Thu, 14 Aug 2008 18:26:08 +0000 http://techliberation.com/?p=11948#comment-43648 <p>Copyleft licenses leave you with all the rights that you would normally have in your <em>first</em> copy of a work. You can resell your one copy of GPL software without ever accepting the GPL.</p> Copyleft licenses leave you with all the rights that you would normally have in your first copy of a work. You can resell your one copy of GPL software without ever accepting the GPL.

]]> By: Don Marti http://techliberation.com/2008/08/14/the-first-sale-doctrine-and-copyleft/comment-page-1/#comment-43528 Don Marti Thu, 14 Aug 2008 17:26:08 +0000 http://techliberation.com/?p=11948#comment-43528 <p>Copyleft licenses leave you with all the rights that you would normally have in your <em>first</em> copy of a work. You can resell your one copy of GPL software without ever accepting the GPL.</p> Copyleft licenses leave you with all the rights that you would normally have in your first copy of a work. You can resell your one copy of GPL software without ever accepting the GPL.

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