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Re: OpenCascade license opinion

On 21/12/2007, Arnoud Engelfriet <arnoud@engelfriet.net> wrote:
> I've never seen cases or commentary on this point either. I suppose
> it wouldn't be worth the lawsuit. Even if my interpretation were to
> prevail, all it gets someone is the right to execute the software
> on the one computer he downloaded the work to.

The only case I can find on s.50C is the Sony "Messiah chip" case from
2002. The judge in that case held that:

"The real question is whether an importer of a non-PAL Sony game may
lawfully, in the country from which it is imported, would have any
right to play the game in this country. That depends upon the
existence of a licence to use the copyright work in this country."

A quick forage on Westlaw suggests the following aspect as well:
Article 5(1) is concerned with the lawful acquirer of an *existing*
copy of the software (see the recitals to the directive). That is,
Article 5(1) is a (limited) "exhaustion of rights" provision.

However, when you download software, you are not acquiring an existing
copy - you are creating a new one. Hence Article 5(1) does not apply.

> True. In business-to-consumer transactions the question if you can
> waive liability (and if so, how much) is a big one. It could thus
> theoretically become relevant if the consumer accepted a waiver at all.

Agreed. But even in a B2C setting, first you have to establish whether
there is any liability to the consumer in the first place. I don't
think the Debian project or any of its upstream licensors have any
liability towards me as a "consumer" - so the question of whether I
could waive that liability doesn't arise.



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