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Re: The Technology Liberation Front » Archive » The First Sale Doctrine and Copyleft

DioGratia — Thu, 14 Aug 2008 19:05:35 -0000

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.

Re: The Technology Liberation Front » Archive » The First Sale Doctrine and Copyleft

LarsG — Thu, 14 Aug 2008 14:56:43 -0000

"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.

Re: The Technology Liberation Front » Archive » The First Sale Doctrine and Copyleft

dmarti — Thu, 14 Aug 2008 13:26:08 -0000

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.