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

[Jeme A Brelin <jeme(at)brelin.net>]

On Fri, 2 Nov 2001, John Schulien wrote:
> 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.

You don't even have to modify it, but OK.

> Generic knows that distribution of their product will be constrained
> by the GPL license of the underlying work, but they're ok with that.

I would use the world "fortified" instead of "constrained", here.

Distribution of their product will be more necessarily MORE than just
giving out copies of some code; they will also distribute the right to
distribute.

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

The CD-ROMs would be illegal to distribute in the first place.  The GPL
clearly states that if you are not able to comply with the license, then
you cannot distribute at all.  QED.

> 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.

You're mis-stating the case.  General Products, Ltd. has no way of
complying with the terms of the GPL, therefore the distribution of 997 CDs
is not legal and a copyright infringement.

Vulturesoft did not legally acquire its copies and therefore has no rights
whatsoever.

> 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

Wrong.  They are legally made copies illegally distributed.

Like if I make a copy of a CD onto a minidisc (or a song or whatever), I
cannot sell that MD without transfering ownership of the CD to the same
buyer.  If I sold JUST the MD, it would be an illegal transfer and I would
be infringing the copyright.  Such is the case for distributing GPL object
code without providing source.

J.
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     Jeme A Brelin
    jeme@brelin.net
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