Internet Downloads

[Jarulf]

Sorry for taking a very long time answering. I have been bussy lately and had other things on my mind.

You see, under US Copyright Law, when you purchase a copy of a work, there's this thing called the Doctrine of First Sale, addressed in section 109.  What it means is that when you buy a book, or a painting, or whatever... you can turn around and sell that copy of the book to anyone you want.  The Doctrine asserts that the copyright holder gives up his right to distribute THAT COPY of the item once he sells it.

I am a bit lost on what you talk about since the quote of me is not something I have written. I don't believe I have ever said anything contrary to the above. What you descirbe actually exists in many (if not most/all) countries copyright law.

If you were correct, this would be the end of it; it would mean that the terms of sale are irrelevant, because once you own it, you can dispose of it as you like, provided you're not violating copyright laws by making copies.

Yes, this applies to about anything you buy. Has nothing to do with copyright. You can dispose (resell or whatever) a chair as well. That is the concept of sale. A change of ownership. It is not tied to copyright. I believe in US copyright law this is specifically said (that it is not tied) in chapter 2, mostly in § 202.

There are two problems, however, and I will admit I was not particularly clear on this previously.  (1) Section 109 specifically contains exceptions related to audio recordings and software (the Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act of 1990).  (2) What if the software company is not, in fact, selling you a copy of the software, but... wait for it... a license to use it?

Yes, the excpetion is about "rental, lease, or lending". Nothing else. This is again, normal in more countries that others. That is, the consumed right to controld distribution after the first sale, is still in place for rental. I don't think I have ever, here or in other places discussing the topic said anything to the contrary. I usually try to specifically mention the exception to rental.

The amendments referred to in (1) boil down to "while you can do whatever the hell you want with books and paintings and sculptures, you can't lease, rent, or lend recordings or software."  Selling you a license to the software, rather than selling you a copy of the software, dodges the Doctrine of First Sale.  You accuse me of being "confused" regarding who "owns" Windows XP; since you're being sold a license, Microsoft certainly does still own Windows XP -- including the copy of it you're using.  All you own is the right to use the software.

You are confused thinking there is some sort of "license". There is none. Software is sold in stores and other palces like most everything else. It is a sale no matter how you look at it, especially from the point of law (I even see US people often dig up some case were a court specifically said so, that is, if it looks and acts like a sell, it is one, no matter what one want to call it). YOu can't sell something to someone and then claim that you don't call it a sale but something else. Even worse, it is someone else than the shop claiming so. Are you saying the shop commits fraud (or whatever it is called) selling something they don't "own"? This must be the logical conclusion. In addition, how can you come ito possession of the software if it is not yours? I mean if you don't own it, you must have rent it or something, or you would be in possession of someone else property.

Sure, the software makers like to call it "a license", that does not turn it into a non sale. That does not make it so. As I also have said before, there is nothing to license. It would be like selling licenese to breath claiming that if you don't agree to it, you may no longer breath.

As an interesting note, try to explain why many comercials claim that you can "own it now" or buy it and so on when making comercials for music, movies, software or whatever.

US District Court for the Eastern District of Missouri, Davidson & Associates v. Internet Gateway Inc (2004)":

Code:

"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement."

"The defendants .. expressly consented to the terms of the EULA and TOU by clicking 'I Agree' and 'Agree.'"

You do know that the case is still in courths and not yet decided, right? I will try to hunt down the reference most people tend to bring up regarding sales being sales. I typically don't go arround collecting links to US court cases since I don't live in the US by the way. Especially since I am more concerned about for example my own country's laws.

As an interesting logical task, what is, according to you and your courts the situation between the purchase and you agreeing to your EULA? Or if you disagree. What applies then? And can your agreement with some third party (software maker) invalidate your sale with a shop?

And that's where your argument runs aground, Jarulf.  When you "buy" Windows XP, you are not purchasing a copy of the software.  You are purchasing a license, and in conjunction with your purchase of that license, Microsoft is providing you with a copy of the software.

I purchase from stores, never from Microsoft, in case you wonder. Selling such a license you propose is pointless as I have explained several times since it is a license for something that does not exist since there is nothing forbidding the use.

What do you mean "provide"? The shop gives me a copy of the software. I made no agreement with the purchase with microsoft. So I don't understand you logic. A sale is a sale if it is is conducted as a sale and it is covered by sales laws. NO way arround it by trying to claim or call it something else. Especially not doing so at a much later stage.

  As part of the terms of that license, Microsoft most certainly may dictate to you terms of use, and until legislation is passed amending sections 106 and/or 109, barring copyright holders from choosing to license their work rather than selling a copy of it as a means of distribution, it'll stay that way.
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None of the paragraphs you mention gives the copyright owner the right to control USE. Have you read my previous posts? It only gives a right to distribute (the act of distribution). HOW you distribute and WHAT you can agree upon WHEN you distribute is covered by (consumer) sales laws and contract laws and have absolutely nothing to do with copyright and as such, anything in that case can also be applied to, for example a chair you sell.

[Jarulf]

Continuing the quote war, because I forgot something:
You have, on repeated occasions in this thread, taken a blanket statement that something is or is not illegal, and then tried to argue that the commentor was incorrect in some fashion simply because that matter is not covered in copyright law itself.  You've been doing it with me for two days, and you did it with Raelynn when he said, and I'm paraphrasing, "Owning a copy of something that hasn't been released yet is illegal."

I answered to a post, I believe by you claiming that copyright law had "an interesting twist". I have pointed out that it indeed does not have such a thing at all and that the subjects is not even covered by the copyright law. Regarding the "not released yet", you are free to point to someo OTHER law that makes it illegal if you want. But appearantly, according to copyright laws, it was not.

I never said that under copyright law, Microsoft is selling you the right to use their software.  I just said Microsoft is selling you the right to use their software, and because you can't find anywhere in copyright law where that's allowable, you started arguing and demanding that I show you where, in copyright law, they have that right.

Yes, in your first post, you said that copyright law had an interesting twist and brought up the view of Microsoft about the license to use. You have repeatedly claimed that § 106 is the one giving them the right or ability to do so. I have said that copyright law is not at issue and does not cver it (to which you accuse me of doing wrong), yet you now want to turn arround and claim I was right and that it would be other laws that cover it?

Since you have mentioned §106 and argued based on copyright law, and since my initial reply was only about the fact that copyright law does not have such a thing, then yes, it seems logical to ask were in copyright law it is found. You are free to point out OTHER laws, and I specifically said in the last post that we could start discussing sales and contract laws, but one should also then note that we can leave copyright behind us.

Raelynn never said that under copyright law, owning a copy of something that hasn't been released yet is illegal; he just said it was illegal.  You got all pedantic with him and explained why that's not illegal under copyright law -- then noted for yourself that it IS illegal, because it's being in possession of stolen property.

Why don't you let him and me handle our disucssion? But if you want to bring it up, fine. You are making a completely false statement and seems to missunderstand copyright and property completely. Again, I first direct you to the second chapter of the US copyright law (since you want to discuss it from a US persepctive). Next, a copy is indeed a property, but also realise that it is a copy made by, in this case, for example, ME!!! The one making the copy is the owner of the property here. It is not stolen, it is not an act of stealing (especially not under theft law). You can't go to the police filing for theft since there is nothing stolen and the copyright holder has indeed, never been the owner of, or even in possession of, the created copy.

Law is not compartmentalized.  Any action anyone takes at any time may be applicable to several, dozens, hell hundreds of different laws scattered around multiple pieces of code (especially when it's a matter of commerce).  The ability to sell you a license to use a copyright work is not just a matter of copyright.  It's covered in copyright law, the Clayton anti-trust act, and common contract law.  You can't just look at one of them to determine what's acceptable.

Of course, I believe I have routinely in this thread refered to other laws that copyright to show that what you talk about, although involving copyright, has nothing to do with copyright law. As for selling you a licnese to use a copyrighted work, no, it is not at ALL covered by copyright laws, since use is not covered by copyright.

Perhaps I was unclear when I said that it was an interesting twist in the way copyright law is constituted, since it really does rest more within the realm of contract law,

So why have you always kept talking about copyright and refering back to your §106 (that is completely irrelevant)?

and the "right to use" something isn't limited to copyright materials; see: leases (license to use a domicile), car rentals (license to use a fleet vehicle), tickets to a football match (license to sit in an uncomfortable seat for three hours), etc.  However, it IS a function of the way copyright law is constituted thanks to (1) section 109, its exceptions, and the methods by which software companies avoid even allowing section 109 to be applicable to their transactions and (2) section 106 and its inalienable right for the copyright holder to control the means of distribution for their intellectual property.

To control how something is solde or otherwise distributed has nothing to do with §106, it is governed by, as you said, other laws, like (consumer) sales laws and contract laws. It only tells that the copyright holder has the right to do so until that right is removed, typically afte the first instance of such a distribution.

I never said that... did I?  If I said that, I wasn't clear.  A copyright holder has an exclusive right to dictate the acceptable uses of their work, and they have this right because (1) they control the distribution and (2) they can control the means of distribution by refusing to sell representation of the work unless you, the purchaser, agree to certain terms.

This has nothing to do with copyright. The same applies to a chair you manufacture. Someone making and selling chairs also control the distribuition and its means. What conditions one can apply is typically in most countries governed by consumer sales laws (if we talk about a consumer situation) that severly restrict the demands one can make in such additional contracts.

Do also note that in almost all cases a consumer does in fact not at all buy from a software manufacturer but from a shop. There is no additional contract done as part of the sale with the software maker and hence, there is no such additional contract possible to control the sale as it has to be done as part of the sale.

  If they do not make these specific declarations in the form of licensing the material, then you, the consumer, are of course presumed to have full right to use the work as you see fit within the bounds of existing copyright law... but their ability to force you to agree to certain terms as a condition if sale does act as a limitation on your right to use the work.

For a right to be a right, it must be absolute within the scope of the granted right.  You can't say "You have the right to use this how you see fit except when we say you don't," because then you really don't have any rights at all; they can be taken away at whim.  As such, you don't have the right to use a work how you see fit; the copyright holder has the right to dictate what rights you do have.  Yes, 99% of the time, the copyright holder says (by omission) "Yeah, whatever, do what you want."  But they CAN impose restrictions on you.
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WHy are you constantly talking about about copyright and copyright holder and the copyright holders right when you have just claimed that it is about other laws and when you accuse me of wanting to know the relation to copyright?

As for what they CAN do, sure they can ask me to agree to restrictions, but I can also decided to note accept their offer for a contract. Then what is in the contract is of no importance and does not apply. So what is the situation then? Well, as I have said, the copyright law does NOT prevent me in any way from using the work. Do another law? And if so, which? Please enlighten me, since you seems to claim that it would be some other law, despite always getting back to copyright law only.

[Jarulf]

As far as I remember, there just wasn't ny copyright protections on the cartridge.  Nothing at all prevented him from just connecting and copying the data from it.
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I think it is important to be carefull about the terminology here. You write "copyright protection" here but in reply to "copy protection" (EDIT: and in your initial post you actually wrote "copyright"). I don't know what a blanket "copyright protection" is. A "copy protection" despite probably being better labled "copy prevention" seems clear, something that tries to prevent copying. That is clear since copyright is about copying (among other things). WHat I think is bad about the DMCA (well, there are many other things as well) is that in addition to listing all the actions that are given as exlusive to the copyright holder, it also acts protection that control ACCESS!!! Access is not a right the copyright holder has, but according to the DMCA, you are not allowed to circumvent protection that controls access, basically giving a copyright holder and inderect new exclusive right, that of access. This is in contrast to the EU directive governing such proetcion and its circumvention that only deals with protection that control copyright relevant rights. That is, the act it protects agains, must have been an infringing act, which copying is but simply accessing it is not.

This difference is important since, one can control access by simply encrypt something. Encryption does not, however, in any way, prevent copying, one simply copy the encrypted data and everything is fine. The DMCA can outlaw that, while the EU directive would not (although some European countries have added in their own laws access as well, but it is not needed due to the EU directive and some countries have opted to not add it.

As example of access protection would for example be region coding on DVDs, it doesn't prevent copying but accessing, hence it is legal to circumvent such a "protection" in for example Sweden, even after them implementing the EU directive. Actually, this specific case is mentioned in the text describing and explaining the newly changed Swedish copyright law.

This does not change or affect you actual question though about the gameboy ROM. Since I am note familiar with the case, I can't comment on it.