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From: Alexander Terekhov (terekhov_at_[hidden])
Date: 2004-07-30 15:12:16

Christoph Ludwig wrote:
> However, that brought another question to my mind: USC can only apply
> if at least one party of the license agreement is living or based

"First sale" is pretty universal copyright principle.

<quote source=>

(1) First Sale Doctrine

The “first sale” doctrine was first analyzed by the United States
Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).


One significant effect of § 109(a) is to limit the exclusive right
to distribute copies to their first voluntary disposition, and thus
negate copyright owner control over further or “downstream” transfer
to a third party. Quality King Distrib. v. L’Anza Research Int’l,
Inc., 523 U.S. 135, 142-44 (1998).


Adobe argues that the first sale doctrine does not apply because
Adobe does not sell or authorize any sale of its software. Adobe
characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.


(2) Sale v. License

(a) Historical Background

Historically, the purpose of “licensing” computer program copy use
was to employ contract terms to augment trade secret protection in
order to protect against unauthorized copying at a time when, first,
the existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use
“licensing” continued after federal courts interpreted the
Copyright Act to provide substantial protection for computer
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software
industry and concluded that subsequent changes to the Copyright Act
had rendered the need to characterize the transaction as a license
“largely anachronistic.” 939 F.2d 91, 96 n.7 (3d Cir. 1991).10

(b) Adobe Sells its Software

A number of courts have held that the sale of software is the sale
of a good within the meaning of Uniform Commercial Code. Advent
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp.,
929 F.2d 1147, 1150 (6th Cir. 1991).


Other courts have reached the same conclusion: software is sold
and not licensed.

(Subject: Re: Purchasing The Standard)
(Subject: Re: Purchasing The Standard)

Read also this: [MUST READ]

As for Germany,
(German court ruling triggers 30% price cuts on Windows)


> in the US. (That's my layman's understanding, at least - IANAL) But is
> Boost a legal entity that can be party to a contract? Or do I in fact
> accept license agreements with the individual Boost contributors?

Boost license is not a contract. It's a bunch of unilateral
permissions. Well, but given the utterly silly ruling of the
Munich district court against the Sitecom in the GPL case
recently... you never know. Hopefully, it will be corrected
on appeal (if the Sitecom will choose to appeal it).


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