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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, 5 Oct 2012 14:28:02 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Fri, 05 Oct 2012 15:06:33 +0200, Alexander Terekhov wrote...

> As far as distribution is concerned all new copies that I've made are
> lawfully made (with the GPL permission to reproduce) and since I own the
> copies that I've made I'm going to distribute these new copies under
> 'first sale' exception to the exclusive distribution right utterly
> ignoring the GPL 'conditions' for distribution as if the GPL would not
> pretend to convey any distribution right at all.

There you go again, assuming that the European exhaustion doctrine stems 
from whether the copy is 'lawfully made'.  It doesn't.  It stems from 
whether the copy has been placed on the European market by or with the 
consent of the copyright holder.

The copies you've just made are still sitting on your hard drive or 
wherever.  They have not yet been placed on the market.  Therefore no 
rights have yet been exhausted.

When you do come to distribute them, you propose to ignore the GPL 
conditions.  The copyright holder has not consented to them being placed 
on the market like that.  Therefore still no rights have been exhausted.  
And you are infringing the copyright (because you don't have permission 
under the GPL to act that way.)

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


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