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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: Tue, 2 Oct 2012 11:30:31 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Tue, 02 Oct 2012 10:19:12 +0200, Alexander Terekhov wrote...
> 
> Alexander Terekhov wrote:
> 
> [... 17 U.S.C. 109 and 17 U.S.C. 117 ...]
> 
> > > How much bearing do you think 17 U.S.C. has on European law?
> > 
> > 17 U.S.C. is currently known in European law as Article 5
>            ^
>            |
> 117 -------+
> 
> > "Exceptions to the restricted acts" of DIRECTIVE 2009/24/EC:
> > 
> > http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF
> > 
> > "Article 5
> > 
> > Exceptions to the restricted acts
> > 
> > 1. In the absence of specific contractual provisions, the
> > acts referred to in points (a) and (b) of Article 4(1) shall
> > not require authorisation by the rightholder where they are
> > necessary for the use of the computer program by the lawful
> > acquirer in accordance with its intended purpose, including
> > for error correction.
> > 
> > 2. The making of a back-up copy by a person having a right
> > to use the computer program may not be prevented by contract
> > in so far as it is necessary for that use.
> > 
> > ..."

So a lawful acquirer of a copy of copylefted software can do the same 
things as if the software was non-free - such as error correction and 
and making a back-up.  But ony to facilitate the use of that specifc 
copy.  Nothing more.  This doesn't permit the making and distribution of 
further copies.  

Big deal. 

> 17 U.S.C. 109 is currently known in European law as Article 4(2):
> 
> "2. The first sale in the Community of a copy of a program
> by the rightholder or with his consent shall exhaust the 
> distribution right within the Community of **that copy,** with 
> the exception of the right to control further rental of the
> program or a copy thereof."

Again, I've emphasised "that copy".  There's no exhaustion of the right 
to control the making and distribution of **further** copies.

-- 
Tim Jackson
address@hidden
(Change '.invalid' to '.plus.com' to reply direct)


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