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I found this great question on wikipedia that I thought deserved an answer:

If I understand this correctly, this could be used to circumvent the non-commercial clause in certain Creative Common licenses. If person A makes copies and gives them to person B for free, B can sell them for any price he wants, because person B is not a licensee, and he has legally obtained the copies legally made by person A. Is that right? — Sloyment (talk) 05:48, 1

hildred
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1 Answers1

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It does open a slight loophole, but it is a small one.

Let's say Alice writes an article and puts it on a website and explicitly licences it under a licence that allows copying but not sales.

Bob finds the article and thinks everyone should read it so he prints out a bunch of copies and goes down to the corner and starts handing them out. This is legal per licence.

Charly gets a copy from Bob, and decides to sell it to Diane. He can sell it for any price that he is able to negotiate with Diane. This is legal Per the first sale doctrine.

Charly cannot make any copies of the article as he is not licenced to do so having violated the terms. Bob cannot sell copies as he is bound by contract (the licence) not to do so. Diane can either make copies or sell the one she has but not both.

hildred
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    The first sale doctrine allows sales outside of licence, regardless of licence. Copying is only allowed by licence. If the licence prohibits sales you can only sell if you do not accept the licence. There is debate about whether software can be used without as coping is intrinsic to use of software or if all software is implicitly licenced for functional copying (I personally hold that EULAs are evil and support breaking them). This has no effect on the GPL as the GPL clearly states that everything allowed by first sale is allowed anyway and that the licence is only needed for copies. – hildred May 28 '15 at 13:44
  • Wouldn't distribution without license mean that the recipient could distribute GPLed software without the reciprocating factor, allowing the recipient to do as he pleases with that copy? If distribution strips the license in this way, then getting around the GPL would seem fairly trivial, especially for electronic copies. Even for physical copies and CC-SA, the first user could make N copies with attribution at the very bottom of a page and the second user (not constrained by CC-SA) could remove the bottom of the page. GPL and CC seem to depend on license transfer. Again, IANAL. –  May 28 '15 at 15:32
  • The thing that you are missing is that the person doing the modification (or anything else not allowed by the licence cannot make copies, so the limit of damage is the copies someone else makes, which limits profitability and increases work. It would be more profitable in most cases to dig steel cans out of people's garbage for recycling. the reason that few people do this is that steel is cheaper than aluminum. It is far easier and cheaper to follow the licence or pay for another licence than muck around this way unless it is just for personal -- continued ... – hildred May 28 '15 at 15:52
  • continued ... use in which case what you want to do is probably allowed anyway, both by statute and licence. This does not apply to EULAs, which often either ignore first sale or try to render it void. How successful they are remains to be seen. – hildred May 28 '15 at 15:56
  • For electronic copies, the cost of copying is extremely low. Having an organization provide this as a free service would break such licenses. (A non-profit organization founded to support the idea of commercial use could do this; they do not violate the CC-NC themselves but encourage others to violate its spirit. Such could receive donations unrelated to specific downloads to cover costs. A similar anti-GPL organization could be imagined.) Even with physical copies, setting up a True Freedom Foundation could be cheaper than paying the lost opportunity costs of the license. –  May 28 '15 at 18:27
  • For what you are proposing to work you would have to have two separate parties acting either in concert or for their own purposes. if in concert that would be conspiracy. So lets pick a real example. Let's say you have developed an improved version of emacs and want to sell it but keep the source to yourself, and somehow managed to do this without copying emacs (which would be a real trick) to pull this off you would have to by copies of emacs on cd (Walnut creek used to do this, but they have gone out of business) alter each cd without copying so that it has your improvements, continued . . . – hildred May 28 '15 at 19:07
  • continued . . . (if you can do this without magic this alone would be a great accomplishment) and sell it. Back of the envelope calculations: software development, 3 man months to get something with enough of an improvement to justify the cost; hardware development to modify cds,6-9 man years. Suggested price. $200 ea cd; copies sold less than 200 because sure as shooting someone is going to give a copy to Stalman and he is a better program than you and knows emacs better than you and he will have a list of the desired improvements to his version on a mailing list continued . . . – hildred May 28 '15 at 19:19
  • continued . . . in less than 3 days after he gets it and under a month later your market is gone. Total profit: let me check my math, big loss. – hildred May 28 '15 at 19:22