Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
>  > 17 USC 109
> 
> The GPL allows copying and distribution only under its terms, and
> distinguishes between copies for personal use and distribution.
> It is a violation of copyright to distribute the former as the
> latter, and the first sale doctrine is not relevant to this - the
> infringing copy was not "lawfully made under this title".

The US courts disagree with you Hyman.

http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html

"In Wells the court granted defendant's motion for acquittal on eight
counts of criminal infringement of the copyright of aerial survey maps
owned by Edgar Tobin. Tobin had licensed 107 of his customers to
manufacture reproductions of his maps for their own use. Defendant was
charged with selling, without authorization, copies of Tobin's
copyrighted maps. The pivotal issue was whether the copies sold by the
defendant were copies which had been the subject of a first sale,
thereby terminating their statutory protection:

". . . If title has been retained by the copyright proprietor, the
copy remains under the protection of the copyright law, and
infringement proceedings may be had against all subsequent possessors
of the copy who interfere with the copyright proprietor's exclusive
right to vend the copyrighted work. If title has passed to a first
purchaser, though, the copy loses the protection of the copyright law
as discussed above." 176 F.Supp. at 633-634.

The court found that "there has been no showing on the record that the
copies of the aerial survey maps were not published by a lawful
licensee of the copyright proprietor or that title to these copies was
retained at all times by the copyright proprietor". 176 F.Supp. at
633. Since the Tobin license did not specify that title to the
reproduced maps was to remain in Tobin, title to the maps belonged to
the licensees who, under the first sale doctrine, were free to resell
the maps. The court concluded: "Lacking the protection of the
copyright law, there can be no infringement, and defendant should be
acquitted." 176 F.Supp. at 634."

Since the GPL does not specify that title to the copies made is to be
retained by the copyright proprietor, title to the copies belongs to
the licensees who, under the 17 USC 109, is free to distribute the
copies without the authority of the copyright owner.

See the light now silly Hyman?

regards,
alexander.

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