Mark Blafkin objects to my post on the First Sale Doctrine:
Tim is also glossing over the most important point. Free software depends on “license agreements” as much if not more than Ballmer and Co. By my reading, if the courts were to fully subscribe to the ideas of Fred VL and Tim, the entire Copy Left movement would be crippled. They would not be able to impose any of the limitations on use/redistribution that are contained in the various versions of the GPL. The proprietary software industry can probably survive without shrinkwrap licensing as Tim suggests, but I don’t see how the Open Source/Free Software communities can survive under the legal framework that Tim is espousing.
Three points come to mind here. First, the most obvious point is that (as Mark would doubtless agree) we shouldn’t necessarily be interpreting copyright law in a way that privileges free software or any other particular business model. If the overall best interpretation of copyright law means the GPL, as written, can’t be enforced, that’s a problem for Eben Moglen, not for the copyright system. I like free software but I don’t like it that much.
Secondly, a point I gleaned from Fred in last week’s podcast: the first sale doctrine is focused on the distribution right. The GPL, in contrast, primarily implicates the reproduction and derivative work rights. There is not, as far as I know, a First Sale Doctrine with respect to those other rights. That is, if I sell someone the right to reproduce my copyrighted work, there’s no copyright provision that says that person can turn around and sell the right to a third party.
Finally, it’s worth noting that the courts have never been the primary enforcement mechanism for the GPL, which is a social contract as much as it is a legal one. The GPL lays out the preconditions for being a member in good standing of the free software community. The primary penalty for violating the license isn’t that you get sued; it’s that you get ostracized by free software developers. As Novell has discovered, you can be in technical compliance with the letter of the GPL and still get ostracized for violating its spirit. So while it’s obviously better for the free software community if they have the force of law backing them up, the GPL might continue to be useful even if it becomes difficult to enforce in a court of law.
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