Re Supreme Court Rules Patent Laws Can't Be Used to Prevent Reselling

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Karl Auerbach <karl () cavebear com>
> Date: May 31, 2017 at 2:40:02 PM EDT
> To: dave () farber net, ip <ip () listbox com>
> Subject: Re: [IP] Supreme Court Rules Patent Laws Can't Be Used to Prevent Reselling
>
> Over the centuries our legal system has developed various policies that are generally lumped under the heading of 
> "anti dynastic".  These policies are intended to erode concentrations of wealth and control over a period of years or 
> generations.  Some examples are the banning of "entails" on real property, limits on the duration of copyright and 
> patent, and inheritance taxes.
>
> This new Supreme Court ruling could be seen as a step along that road - a step that says that there are limits on how 
> far a creator can control downstream uses.  In particular, are there clear markers on the trail of downstream use 
> that can be used as places to indicate where the creator's control is reduced and, the downstream user's control 
> increased?
>
> One such marker is a transfer of ownership, a sale.  For books there has long been the first sale doctrine.  (That 
> doctrine seems to be fading as electronic books are "licensed" rather than "sold" - but that's another story.)
>
> In the realm of copyrighted software there are similar events - transfers that we often don't call a "sale" but 
> which, nonetheless, are identifiable steps in the chain of control that forms use of that software as it moves 
> downstream from its original creators.  In the case of software, often those downstream users add their own gloss or 
> improvements.
>
> Which brings me to software licenses that impose downstream restrictions, particularly those that are "viral" in the 
> sense that they impose obligations even on those improvements or changes that a downstream user makes.  One such 
> license is the common GPL in its various versions.
>
> I am curious whether the rational of this new case might eventually be used to create new anti-dynastic style rules 
> that would cause provisions, such as seen in viral software license, to erode over time and downstream dissemination? 
>  To be a bit more concrete, could the logic of this case be a lever that could be used to weaken the obligation in 
> the GPL that a downstream user's own additions to a GPL'd work must themselves be disseminated under the GPL?
>
>                --karl--
>
>
>
>
> -- 
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