[dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c)infringementcase

[John Schulien <jms(at)johns.cc.uic.edu>]

On Fri, 2 Nov 2001, Noah silva wrote:
> So let me be stupid here and ask...  What happens when someone who
> wants to do something against (GPL, BSD Lisence, MPL, SISSL, LGPL,
> etc.) claims he isn't bound by the lisence because he has "first sale"
> (or first gift?).

Jeme A Brelin writes:
>
> First sale doesn't give you the right to redistribute 
> copies... certainly not commercially.

> I don't see how you could violate any of those 
> licenses by practicing the
> rights transfered at first sale.

Here's a contrived scenario ...

Generic Products Ltd, a software company, takes 
someone else's GPLed work, modifies it,
and prepares to market the product. Generic
knows that distribution of their product will
be constrained by the GPL license of the 
underlying work, but they're ok with that.

Generic has 1,000 CDs pressed, boxed, and ready 
to market.  The CDs contain object code of the 
program, along with a good-faith offer to provide 
the source code to the program on request, as 
required by the GPL. For the sake of argument, 
they even sell a few copies of the object code
CD to the general public, but none of those 
customers happen to ask for the source code, 
so it is never sent out.

Suddenly, a meteor crashes into Generic's
headquarters, destroying the computer containing
their source code, and killing their entire
staff.  Gulp!

Generic has exactly one remaining asset,
which is sold at auction by court order to pay
Generic's unpaid bills on their gold plated 
office furniture and 48" monitors.

That asset is a box of 997 copies, on CD-ROM, of 
the pre-compiled, object-code of the GPL
constrained software.  The purchaser of the
box of CD-ROMs, Vulturesoft, decides to sell 
the CDs one at a time to the public on a 
discount web site.

Can Vulturesoft do that?

On the one hand, Vulturesoft has no way of 
complying with the terms of the GPL -- under 
the GPL, he must be able and willing to offer 
source code on request, yet the source code 
no longer exists.

On the other hand, those 1,000 copies he 
owns are:

o  Legally made copies
o  of a published work
o  that have been sold

which seems to qualify them for 
unrestricted resale, regardless of any 
licensing provisions.