Tim Lee

First Sale and the GPL

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.

September 5, 2007 | Comments |

3 comments posted

  1. Posted by: Joe Gratz - 09/05/2007

    Your most important point is your second one. At least as codified in 17 U.S.C. 109, the First Sale Doctrine by its very terms deals only with violations of the exclusive right set forth in 17 U.S.C. 106(3) — the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”.

  2. Posted by: Charles - 09/06/2007

    I gues that’s what Joe Gratz says above is the answer to Blafkin. The GPL deals in copying and derivative work, while the first sale doctrine deals in redistribution.

    If you buy a copy of a GPL-licensed work, there’s nothing that prevents you from deleting the installed software from your computer, putting the CD back in the box and selling it for 5$ at a yard sale.

    What the GPL enables you to do is to make copies of the work and it limits how you may license derivative works.

    Different issues there.

  3. Posted by: enigma_foundry - 09/06/2007

    Tim:

    Your pointsmake goodsense, and it was quite obvious that Blafkins posst was really just smoke and mirrors–I start to wonder why they even bother.

    It is clear that there is a lot of smoke being put out by the anti-free software camp, and sites such as Groklaw and posts such as this have done a good job at deflecting the dis-information campaign.

    I’d like to see TLF cover the standards fight over the OOXML file format. That’s getting interesting.

Subscribe to this entry's comments

Post a comment