CyberTech Rambler

October 12, 2009

First Sales Doctrine derailing GPL and other open source licenses? Not likely

Filed under: Uncategorized — ctrambler @ 10:52 pm

PJ believes that Apple and Psystar litigation is developing into an attack against GPL using the “First Sales Doctrine”. May be, but I think it is not. Why? First, the law is there to reflect reality, in real life I see parallels in at least real estate, and I think I believe how the judges will formulate their decision to reflect norm.

In real estate, it is not unusual to have covenent in land title. Take Cambridge UK for example. If you live in or near it, your house is likely to be on ex-Cambridge University land, and if so, your land title  is likely to have a covenent that sounds like this: “The University sells the above-mentioned land to the buyer on the covenent that the land will not be used for commercial purpose. The buyer will observes this covenent and ensure the next buyer in the subsequent sales accepts and observes this covenent and carry on the buyer’s responsibility under this covenent”. In short, the covenent is passed on from one buyer to another. Whether you are the first or 100th buyer, you cannot turn your house into a shop.

Now, there is no question that if you buy a house in Cambridge, you are the owner of the house. Equally, there is no question that the covenent will apply to you. Your act of purchasing the land automatically means you accepted the covenent. The covenent is in effect, equal to a license, or more precisely, a restriction on what you can and cannot do with the land. In this case, you cannot turn it into a shop (or factory).

Second example. [I might have the roles reversed but it is essentially the same story] During the last aviation slump, Airbus provides incentive to airlines to dump older plane by offering the option to trade in their exisitng aircraft, including Boeing’s. This made Airbuses the owner of quite a few Boeing’s aircraft. The sales is real. Although it sounds and taste strange, Boeing cannot say no, because of the first sales docrine. The irony is, being the owner of Boeing’s aircraft, AirBus is entitled to technical updates for the aircraft types they bought. In a sense, you can say AirBus gets intellegence about Boeing’s plane by getting around any NDA Boeing makes their customer sign. Ingenious isn’t it? However, although an owner of Boeing-made aircraft, Airbus still have to obeys Boeing’s rule on what an aircraft owner can or canot do. In particular, it must follows Boeing’s maintenance procedure to the letter, even if it thinks it can do a better job, or disagree with Boeing on the work to be carried out. In other words, there is a limit on what AirBus can do!

Therefore, although I am not a lawyer, I am certain that even if the “first sales docrine” applies to software, the GPL will still applies. In this case it is my view that the GPL, or any other licensing condition your software vendor impose on you, is equvalent to the covenent on the land title, or AirBus having to follow Boeing’s instruction on aircraft maintenance.

Now, how do I square this view? Easy. Being the owner gives you certain rights, but it does not mean you can do whatever you fancy. Owning the house gives you the rights to use the house and the rights to sell it to another party. However, there are still rules that your seller can impose on you and your buyer, i.e. the covenent. AirBus has the right to operate the Boeing aircraft they bought, to sell it when they are done with them, and the rights to access technical documents, but they must follow Boeing’s maintenance regime. Similarly with software: You buy and own the rights to use the software and to sell the rights to use it. Unfortunately, you still have to observe rules that says you cannot reverse-engineer or the rule that says you have to give any modification you made to your buyer.

I will not be surprise if the judge comes up with something similar. Of course, being more intelligent than me, may be they know of a better solution. What I think is really at stake is the software vendor’s insistance that you are a “licensee” and not “owner” and therefore you do not have the rights to pass on/sell the software you no longer need or want. There is a strong likelihood that the terms in your “license” that restricts your rights as owners will be stripped. However, other portions of the license still apply.

As for PJ’s assertion that this is an attack by closed source software against open source. I am not sure. I can see that she based her opinion on the fact that part of the GPL, the part that is different from closesource software will be ruled illegal. It is possible but I do not think this is likely. The judgement, if and when handed down, is likely to equally affect close source and open source software.

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