Intellectual Property II
CJohn Zammit
law expert, Paul Tauger (poster Ptravel), asserts that, "A license that is
not a contract is an oxymoron."
Not being a lawyer, I'm still somewhat confused.
In its almost 3-page definition of "Contract," Black's Law Dictionary
doesn't mention, even once, the word "license."
But in its definition of "License," Black's states that, "A license is not a
contract ..."
I have deliberately cut short that sentence because, as a non-lawyer, I am
not sure whether it applies to strictly the context of the paragraph in
which it appears, or, to the entire definition of "license."
That said, what if, instead of affixing the standard copyright notice to a
work, the author were to declare, "I hereby waive all rights granted me by
copyright"?
Would that be a license?
Can it be considered a contract?
Lee Hollaar
>But in its definition of "License," Black's states that, "A license is not a
>contract ..."
>
>I have deliberately cut short that sentence because, as a non-lawyer, I am
>not sure whether it applies to strictly the context of the paragraph in
>which it appears, or, to the entire definition of "license."
It would be helpful if you did post the entire definition, or at least
the paragraph containing the phrase, so that one can see the context
in which it was used.
And also the edition of Black's that you are quoting. For example,
the Seventh Edition does not seem to have anything like that.
And, of course, one needs to understand that Black's in a dictionary
and not a complete discussion of a concept.
PTRAVEL
"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
news:tofqf.16920$eo....@read1.cgocable.net...
> That said, what if, instead of affixing the standard copyright notice to a
> work, the author were to declare, "I hereby waive all rights granted me by
> copyright"?
That is dedication to the public domain. It's not a license.
Arnoud Galactus Engelfriet
I hereby grant to any person the unrestricted right to exercise
all rights concerning this work.
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
PTRAVEL
"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
news:doca0s$1994$1...@toad.stack.nl...
> In article <40tj0qF...@individual.net>,
> PTRAVEL <ptravel8...@yahoo.com> wrote:
> >
> >"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
> >news:tofqf.16920$eo....@read1.cgocable.net...
> >
> >> That said, what if, instead of affixing the standard copyright notice
to a
> >> work, the author were to declare, "I hereby waive all rights granted me
by
> >> copyright"?
> >
> >That is dedication to the public domain. It's not a license.
>
> I hereby grant to any person the unrestricted right to exercise
> all rights concerning this work.
Practically, and probably legally, that would be dedication to the public
domain, as well.
Arnoud Galactus Engelfriet
PTRAVEL <ptravel8...@yahoo.com> wrote:
>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
>news:doca0s$1994$1...@toad.stack.nl...
>> all rights concerning this work.
>
>Practically, and probably legally, that would be dedication to the public
>domain, as well.
Well, it's a permission from an authority to do something that
would otherwise be forbidden. As copyright holder, I'm the authority
and I permit you to do certain things. To me that fits the definition
of "license" as it occurs in Black's.
Maybe there's a terminology issue at work here. I've always seen
a patent license or copyright license as comparable to a fishing
license, driver's license, law license, radio frequency license.
It's the actual permission that the licensor grants the licensee.
The _grant_ of a license under patent or copyright is done in
a license contract. The grant of a driver's license or fishing
license is done through a different legal construct.
Does that make sense? It certainly would go a long way in making
sense of the statement "the GPL is a license, not a contract". By
itself, the GPL sums up a series of permissions granted by a
copyright holder, so it's a license. A contract is formed when
someone _accepts_ the GPL.
Lee Hollaar
> It certainly would go a long way in making
>sense of the statement "the GPL is a license, not a contract".
One can tie oneself in knots trying to make sense of the GPL and
the statements made about it. It ignores provisions of the copyright
statutes that allow the modification or redistribution of works
without permission of the copyright owner. It talks about "derived"
works which don't seem to be the same as "derivative works." And
the explanations from RMS and others often make little sense, as
in the case where something was a derived work until somebody wrote
a non-GPLed math library compatible with the GPLed one.
One has to ask oneself whether it makes any difference if the GPL
is a "contract" or not, keeping in mind that there hasn't been any
case where the FSF has sued anybody over the GPL. I suspect that
if they did sue somebody, they would throw in a breach of contract
claim just in case.
It will be interesting to see what the upcoming third version of
the GPL will be like, considering that it is being written by somebody
with legal knowledge, and not just RMS.
PTRAVEL
> In article <40ts3qF...@individual.net>,
> PTRAVEL <ptravel8...@yahoo.com> wrote:
>>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
>>news:doca0s$1994$1...@toad.stack.nl...
>>> I hereby grant to any person the unrestricted right to exercise
>>> all rights concerning this work.
>>
>>Practically, and probably legally, that would be dedication to the public
>>domain, as well.
>
> Well, it's a permission from an authority to do something that
> would otherwise be forbidden. As copyright holder, I'm the authority
> and I permit you to do certain things. To me that fits the definition
> of "license" as it occurs in Black's.
1. Black's is a legal dictionary, not an authority (this is why lay people
shouldn't argue law).
2. Unless you've reserved rights, it's not a license. In your
hypothetical, no rights are reserved. As such, it's dedication to the
public domain.
>
> Maybe there's a terminology issue at work here.
Perhaps from your perspective. Not from mine.
> I've always seen
> a patent license or copyright license as comparable to a fishing
> license, driver's license, law license, radio frequency license.
> It's the actual permission that the licensor grants the licensee.
That's how a lot of non-lawyers see it.
>
> The _grant_ of a license under patent or copyright is done in
> a license contract.
No one calls it a "license contract."
> The grant of a driver's license or fishing
> license is done through a different legal construct.
>
> Does that make sense?
Honestly? No. A license is a conveyence of rights. You seem to be making
a distinction between the piece of paper on which the conveyence is written
and some metaphysical act of "conveying." There is no such distinction, or
at least none that matters from a legal standpoint.
> It certainly would go a long way in making
> sense of the statement "the GPL is a license, not a contract".
Except that it has nothing to with law, and the statement is wrong and
remains wrong.
> By
> itself, the GPL sums up a series of permissions granted by a
> copyright holder, so it's a license. A contract is formed when
> someone _accepts_ the GPL.
A license is a conveyence of rights. A license is a contract. As with any
contract, unless there has been acceptance, no contract is formed. If the
contract in question is a license, if there has been no acceptance, there is
no license.
Rahul Dhesi
>One can tie oneself in knots trying to make sense of the GPL and
>the statements made about it. It ignores provisions of the copyright
>statutes that allow the modification or redistribution of works
>without permission of the copyright owner. It talks about "derived"
>works which don't seem to be the same as "derivative works." And
>the explanations from RMS and others often make little sense, as
>in the case where something was a derived work until somebody wrote
>a non-GPLed math library compatible with the GPLed one.
A lay person without any preconceived notions of what the law ought to
be typically has no problem understanding the GPL. For example, lay
folks have a pretty good idea of derived works are, even if they are not
sure where the exact boundary is between a derived work and a merely
inspired or merely aggregated work. Only those people who wish to take
advantage of GPL-licensed software while doing their best to avoid
actually conforming to the GPL actually care where the exact boundary
is.
Is it really a problem that there is not always an exact mapping between
clauses in the GPL and clauses in published court opinions? I think
courts are quite capable of taking something written in English and
mapping it to L-English, based on what the writer's obvious intent must
have been.
I think there are two main reasons why people criticize the GPL.
1. People who don't like the GPL wish to gain publicity points by trying
to cast doubt on the validity of the GPL. One strategy they use is to
allege a lack of clear mapping between the English used in the GPL and
the L-English used in many licenses and contracts.
2. People who like the GPL are sometimes concerned that it might not be
legally rigorous enough to prevent misuse of GPL-licensed software.
I think there are very few people who fit the description in item 2
above, and they don't seem to post to misc.int-property. The rest of
the people who criticize the GPL are really criticizing not its language
but its philosophy. If their real objection were to what they think is
its lack of rigor, they would keep silent on this isue quietly watch in
amusement as GPL licensors failed to enforce the GPL.
(I am not claiming that you necessarily fit either of the two categories
above.)
--
Rahul
Rahul Dhesi
>Honestly? No. A license is a conveyence of rights. You seem to be making
>a distinction between the piece of paper on which the conveyence is written
>and some metaphysical act of "conveying." There is no such distinction, or
>at least none that matters from a legal standpoint.
I would have thought that the piece of paper (or electronic file)
doesn't become a conveyance until something is actually conveyed.
And it's not clear to me that there is any real conveyance occurring
when somebody merely copies GPL-licensed software, unless you actually
transfer the copyright to him too.
--
Rahul
Lee Hollaar
>A lay person without any preconceived notions of what the law ought to
>be typically has no problem understanding the GPL.
To the extent that the GPL is a political screed, that's all well and
good. But it is also a legal document, or at least tries to be, and
there it is subject to all the preconceived notions of what the law is.
>Is it really a problem that there is not always an exact mapping between
>clauses in the GPL and clauses in published court opinions? I think
>courts are quite capable of taking something written in English and
>mapping it to L-English, based on what the writer's obvious intent must
>have been.
The problem is that the mapping may not be what RMS intended, or what
a reasonable person being bound by the GPL thought. The courts have
enough problems interpreting statutes or contracts or patent claims
when the drafter wasn't using slightly different terms or ignoring
existing law.
PTRAVEL
"Rahul Dhesi" <c.c....@XReXXIntel.usenet.us.com> wrote in message
news:docjai$itd$1...@blue.rahul.net...
> "PTRAVEL" <ptravel8...@yahoo.com> writes:
>
> >Honestly? No. A license is a conveyence of rights. You seem to be
making
> >a distinction between the piece of paper on which the conveyence is
written
> >and some metaphysical act of "conveying." There is no such distinction,
or
> >at least none that matters from a legal standpoint.
>
> I would have thought that the piece of paper (or electronic file)
> doesn't become a conveyance until something is actually conveyed.
It doesn't matter, as this is all semantic nonsense. The conveyence takes
place (unless otherwise provided) upon the excecution of the contract that
is the license.
> And it's not clear to me that there is any real conveyance occurring
> when somebody merely copies GPL-licensed software, unless you actually
> transfer the copyright to him too.
That would be an assignment, not a license. This is basic (very, very
basic) copyright law. A copyright can be viewed as a bundle of sticks, each
stick comprising a right that can be conveyed in a number of ways -- a right
can be licensed or, if the conveyence is total and permanent, it can be
assigned. Anything less than an assignment is a license.
As for what may or may not be clear re: the GPL, if rights in the subject
matter are retained and not assigned, then it is a license. I don't know
from memory all the provisions of the GPL. If it permits copying, then that
is a license. The GPL retains rights in the software so protected, so it is
not an assignment.
> --
> Rahul
>
Rahul Dhesi
>The problem is that the mapping may not be what RMS intended, or what
>a reasonable person being bound by the GPL thought. The courts have
>enough problems interpreting statutes or contracts or patent claims
>when the drafter wasn't using slightly different terms or ignoring
>existing law.
Are you sure that reasonable persons will be surprised by a court's
interpretation of the GPL with any greater likelihood that reasonable
persons are surprised by the way contracts written in L-English are
interpreted by courts? Licenses written in L-English are far more
difficult to understand by reasonable persons than the GPL is.
Let me give you an example of a license written in L-English that
surprises reasonable persons. Microsoft's typical license that
accompanies pre-installed Microsoft OSs tells the user that he may
return the software for a full refund. But reasonable persons have tried
to get the full refund and failed. A Google search should turn up some
stories. We seem to have here an example of an L-English license in
which "may return" apparently means "may not return".
Which portions of the GPL do you think are likely to be more surprising
to reasonable persons than the example above?
--
Rahul
PTRAVEL
> hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:
>
> >One can tie oneself in knots trying to make sense of the GPL and
> >the statements made about it. It ignores provisions of the copyright
> >statutes that allow the modification or redistribution of works
> >without permission of the copyright owner. It talks about "derived"
> >works which don't seem to be the same as "derivative works." And
> >the explanations from RMS and others often make little sense, as
> >in the case where something was a derived work until somebody wrote
> >a non-GPLed math library compatible with the GPLed one.
>
> A lay person without any preconceived notions of what the law ought to
> be typically has no problem understanding the GPL.
Which gets to the heart of the matter. A lay person's understanding of the
GPL is (1) generally based on ignorance, and (2) almost certainly wrong.
I've seen similar lay arguments about Fair Use doctrine, i.e. "oh, there are
four factors in the statute, so as long as I come under one, e.g. my use is
educational, then it's fair use." Simple and easy? Yes. Correct?
Absolutely not.
> For example, lay
> folks have a pretty good idea of derived works are, even if they are not
> sure where the exact boundary is between a derived work and a merely
> inspired or merely aggregated work. Only those people who wish to take
> advantage of GPL-licensed software while doing their best to avoid
> actually conforming to the GPL actually care where the exact boundary
> is.
Only those trying to comply with GPL, or trying to enforce the GPL, care
where is the exact boundary. This is a critical question, and one that I
answer for my software clients on a regular basis. Their programmers don't
care. Their general counsel and officers and directors care very much
since, if their programmers are wrong (and they often are), the company can
lose huge amounts of money.
>
> Is it really a problem that there is not always an exact mapping between
> clauses in the GPL and clauses in published court opinions?
No. "Published court opinions" have nothing to do with this. What do you
think the purpose of law is? (That's a rhetorical question, as I'm going to
answer it). The purpose of law is, among other things, to provide
predictability in human interactions. The purpose of contract law is, among
other things, to provide predictability in commercial interactions. That's
why construction of the GPL is critical -- any commercial enterprise
attempting to use software licensed under the GPL must be able to predict
whether (1) their use is lawful and in compliance with the GPL, and (2)
whether using GPL-licensed material will negatively effect their ability to
profit off the works that they produce. This may be a game to those without
an economic stake in the outcome, but it is certainly not a game to those
businesses whose very existence depends on their ability to derive profit
from the software that they produce. As a matter of law, and as with any
license, construction of the GPL is pursuant to standard contract
doctrine -- that's how the courts will look at it, and that's how I look at
it when I'm asked to evaluate an open source license for my clients. The
authors of the GPL can claim "it's not a contract" all they want -- calling
a horse a stripeless zebra doesn't make it one, and the court's will not
consider the parole statements of GPL proponents when it comes time to
enforce the GPL.
> I think
> courts are quite capable of taking something written in English and
> mapping it to L-English, based on what the writer's obvious intent must
> have been.
Except that isn't how courts construe contracts -- another example of why
lay understanding of these kinds of things is usually wrong and, for that
reason, meaningless. There are all sorts of doctrines of construction that
will control. For example, parole evidence is barred if the contract is
integrated, ambiguities are construed against the draftor, all terms will be
construed to give them meaning, etc., etc., etc. If you haven't studied
contract law, you won't know them and won't be able to predict how a court
will construe a license.
>
> I think there are two main reasons why people criticize the GPL.
>
> 1. People who don't like the GPL wish to gain publicity points by trying
> to cast doubt on the validity of the GPL. One strategy they use is to
> allege a lack of clear mapping between the English used in the GPL and
> the L-English used in many licenses and contracts.
Wrong. I don't like the GPL because its terms are incompatible with my
clients' business goals. I don't question whether the GPL is "valid,"
whatever that means in the context in which you've used the term. On the
contrary, I proceed on the assumption that it is valid and enforceable. It
is therefore critical to understand its terms if my clients are going to
incorporate software licensed under it.
>
> 2. People who like the GPL are sometimes concerned that it might not be
> legally rigorous enough to prevent misuse of GPL-licensed software.
I have no idea what "legally rigorous" means in any context. As I said, I
assume the GPL (and all other open source licenses) are valid and
enforceable. The GPL incorporates an _economic_ philosophy that is
incompatible with the business models employed by my clients. As such, they
don't use GPL-licensed software.
Incidently, my clients, on my recommendation, _have_ used some open source
products, usually in contexts in which the open source software is a tool
that produces an end result. Based on _my_ construction of the open source
license, use of the end product does not result in unacceptable obligations
on the part of my client, whereas incorporation of the code that produces
the end result would. My only concern is what obligation would my client
undertake if they employ licensed code (and that is true with respect to any
license, not just open source). I don't care about the relative "rigor" of
the license.
>
> I think there are very few people who fit the description in item 2
> above, and they don't seem to post to misc.int-property. The rest of
> the people who criticize the GPL are really criticizing not its language
> but its philosophy.
Exactly! The GPL is the expression of a particular economic theory. That
theory is _not_ compatible with the business models employed by my clients.
It's got nothing to do with whether I "like" the GPL or not. My only
concern is how it effects my clients.
> If their real objection were to what they think is
> its lack of rigor, they would keep silent on this isue quietly watch in
> amusement as GPL licensors failed to enforce the GPL.
I've never suggested the GPL is unenforceable, nor would I normally
recommend to a client that they proceed on the assumption that a license is
unenforceable. What do you think happens if a license is unenforceable?
(That's another rhetorical question.) It means that the use of the
expression protected by the license is unauthorized and unprivileged, i.e.
that use would constitute copyright infringement.
Isaac
<hol...@antitrust.cs.utah.edu> wrote:
>
> One has to ask oneself whether it makes any difference if the GPL
> is a "contract" or not, keeping in mind that there hasn't been any
> case where the FSF has sued anybody over the GPL. I suspect that
> if they did sue somebody, they would throw in a breach of contract
> claim just in case.
I think one possible impact is that if the GPL is not a contract, it
probably could not be enforced in state court, and it might be
impossible to enforce the license against state government infringers.
Isaac
Isaac
<c.c....@XReXXIntel.usenet.us.com> wrote:
>
> Is it really a problem that there is not always an exact mapping between
> clauses in the GPL and clauses in published court opinions? I think
> courts are quite capable of taking something written in English and
> mapping it to L-English, based on what the writer's obvious intent must
> have been.
If the GPL were a contract, then the provisions concerning
derived works would be on more solid ground. OTOH, if it is possible
to create derived works without infringing copyright, and if the GPL
is not a license, then the owner's definition of derived works may
not even be relevant in court. The FSF seeks to enforce limitations
on derived works in situations where creating them does not require
infringing any of the copyright holder's exclusive rights under the
law.
Isaac
Isaac
wrote:
> In the seemingly never-ending "intellectual property" thread, prominent IP
> law expert, Paul Tauger (poster Ptravel), asserts that, "A license that is
> not a contract is an oxymoron."
One thing wrong with that statement is that there is a real property
concept called a license that refers to a grant of permission to make use
of property. A grant of permission to allow someone to pick apples from
a tree growing in your yard is a license in a real property sense, but it
is assuredly not a contract. For one thing, such a license is revocable.
> Not being a lawyer, I'm still somewhat confused.
>
> In its almost 3-page definition of "Contract," Black's Law Dictionary
> doesn't mention, even once, the word "license."
I wouldn't make much out of the omission.
> But in its definition of "License," Black's states that, "A license is not a
> contract ..."
>
Some context would be real helpful. There is the chance that Black's might
have something interesting to say here. I have to admit that I haven't looked
in my copy of Black's since I was a first year law student.
Isaac
PTravel
"Isaac" <is...@latveria.castledoom.org> wrote in message
news:slrndqk2k4...@latveria.castledoom.org...
> On Wed, 21 Dec 2005 11:28:09 -0500, CJohn Zammit
<cjohnz@==NOSpam==cogeco.ca>
> wrote:
> > In the seemingly never-ending "intellectual property" thread, prominent
IP
> > law expert, Paul Tauger (poster Ptravel), asserts that, "A license that
is
> > not a contract is an oxymoron."
>
> One thing wrong with that statement is that there is a real property
> concept called a license that refers to a grant of permission to make use
> of property. A grant of permission to allow someone to pick apples from
> a tree growing in your yard is a license in a real property sense, but it
> is assuredly not a contract. For one thing, such a license is revocable.
That a license is revocable doesn't disqualify it from being a contract.
Why do you think that entry upon land by permission, i.e. a license, is not
also a contract?
Lee Hollaar
>Are you sure that reasonable persons will be surprised by a court's
>interpretation of the GPL with any greater likelihood that reasonable
>persons are surprised by the way contracts written in L-English are
>interpreted by courts? Licenses written in L-English are far more
>difficult to understand by reasonable persons than the GPL is.
>
>Let me give you an example of a license written in L-English that
>surprises reasonable persons.
I'll do you one better, and that's the difference between what an
exclusive license means under the law, and what most people think
it means.
Or, in a patent claim, what "consisting of" means and how it is
different from "comprising".
But patent claims and licenses and contracts are legal documents,
and are interpreted as such and not as what a layman would think.
Which is why, when you have a legal document written by somebody who
doesn't fully understand the law, it is difficult to predict how it
might be interpreted.
Isaac
The offers involved with a contract are revocable, but once the contract
is formed it is not revocable unless the terms explicitly include a term
allowing it. A license to pick apples on the other hand can be revoked at
any time.
You're on pretty shakey ground here. The license in question is the
property right and not any surrounding agreement that could be a contract.
It's strictly a property concept.
Isaac
PTravel
The contract is, "You can enter on my land to pick apples, said license
revocable at any time."
It's not the contract that is revoked, but the license to enter granted by
it.
>
> You're on pretty shakey ground here. The license in question is the
> property right and not any surrounding agreement that could be a contract.
> It's strictly a property concept.
Sorry, I don't agree. Ever read the back of a movie ticket? It reserves
the right of the management to revoke the license to enter. Do you think
the ticket isn't a contract?
>
> Isaac
>
Isaac
> The contract is, "You can enter on my land to pick apples, said license
> revocable at any time."
If you believe that to be a contract, then I understand why we don't agree
What you have there is a simple grant of permission. It is not a contract.
Isaac
Arnoud Galactus Engelfriet
Rahul Dhesi <c.c....@XReXXIntel.usenet.us.com> wrote:
>Only those people who wish to take
>advantage of GPL-licensed software while doing their best to avoid
>actually conforming to the GPL actually care where the exact boundary
>is.
That's an unfair characterization. There are many perfectly good
reasons to want to know exactly how far your obligations go.
For example, if our engineers consider using a piece of GPL software
in a product that uses third-party software as well, I need to know
our obligations. Do we need to acquire rights to release that
third-party software under GPL as well? Or should we go look for an
alternative to the GPL software?
This has nothing to do with "wanting to avoid the GPL".
Of course, you could say "just make your whole product GPL".
That nicely avoids the question, and probably would make RMS
very happy. But it's not practical.
>I think
>courts are quite capable of taking something written in English and
>mapping it to L-English, based on what the writer's obvious intent must
>have been.
True, _if_ the writer's intent is obvious. This is not true for
the GPL. The text contradicts itself in several places, which
makes it very difficult to determine what RMS meant when he
wrote it. And that in my opinion is more of a reason why people
argue over what it is supposed to mean.
Alexander Terekhov
Lee Hollaar wrote:
[...]
> It will be interesting to see what the upcoming third version of
> the GPL will be like, considering that it is being written by somebody
> with legal knowledge, and not just RMS.
Oh yeah, I'm eagerly awaiting http://gplv3.fsf.org circus begin. Apart
from top notch entertainment value, don't hold your breath though. "The
GPL is the Constitution of the Free Software Movement", "The GPL is the
Literary Work of Richard M. Stallman ... to preserve its integrity as a
work representative of his intentions as any other author or creator"
(http://www.fsf.org/news/gpl3.html). See it's not about law (other than
GNU law). The FSF ignored problems with the GPL for years, and I just
can't believe that it will change.
http://www.stromian.com/Corner/Feb2005.html
<quote>
Rosen is too polite to call for replacing the FSF licenses with his own,
but in his Chapter 6: Reciprocity and the GPL, he makes many
observations, including:
1) The FSF’s refusal of outside improvements to the GPL and its
denunciation of them as "restrictions" handicaps the GPL in the courts:
"Their avoidance of restrictions has delayed the adoption of new and
useful licensing concepts for open source software." (p. 106). These
"restrictions" are actually items such as clear grants of patent
licenses and the like.
2) The FSF language about software "containing" GPL’d software tries to
turn collective works into derivative works, and is contrary to the
usual practice of copyright law (p. 114).
3) Further instances of unclear language that vary from simply untrue
(the GPL mandate that "you must give the recipients all the rights that
you have," says Rosen, "is unnecessarily frightening and is not true"--
because you still have the right to give the work to others, p. 111) to
inept (the provisions for linking to LGPL’d code is "an impenetrable
maze of technobabble," p. 124).
4) The FSF’s ideas about linking to GPL’d software (see 2) and 3) above)
conflict with copyright law and practice to the extent that there is no
need for the LGPL because a user who does not modify a GPL’d work of
software, but simply incorporates it into a collective work and
distributes it, is well within copyright law. This means, simply, that
one can link to GPL’d software and distribute the collective work. If
the software has a use, simply using it is permitted under copyright
law.
The problems resulting from the FSF’s unwillingness or inability to
bring their GPL/LGPL licensing into conformity with copyright law, and
with modern software licensing practice under that law, will lead it
into eventual disrepute. So far the FSF has been scrupulous about
avoiding court, relying on quiet persuasion that moves over to loud
public indignation and pressure on the infringer from many quarters,
and it has been successful so far. But its reputation for ferocious
fanaticism frightens away not only those who would abuse the GPL, but
also those who can’t come to terms with the FSF’s interpretation of
its licenses. By holding the opinion that a collective work is
actually a derivative work (and therefore violates the GPL) the FSF
invites gradual and then wholesale violations of the GPL, and
increasing difficulty in determining which cases will be defensible
and which will have to be ignored in order not to expose the FSF’s
interpretations to adjudication.
In cases in which the FSF is not the copyright holder, and therefore
lacks standing in court, the actual copyright holders will have to
reach the same decision about bringing an infringement suit. The
worst case would be that of distributing binary-only software linked
to unmodified GPL’d software. A good prediction of the outcome would
be that the GPL will be found invalid in some way. First, for its
ambiguities: courts decide in favor of licensees if the licensor has
not written a clear license. Second, for its clear misinterpretations
of copyright law. Rosen believes that the courts will favor the GPL’s
restrictions on derivative works, but not on collective works. Beyond
this fairly clear risk is any additional court finding concerning the
GPL, for no one ever really knows what a court will decide.
In any case the GPL will have been exposed as a paper tiger, the
result of a too-wide stretching to achieve the death of proprietary
software. No one in the Open Source world wants a public and legal
repudiation of an archetypal Open Source license. The sensible thing
would be for the FSF to adopt Rosen’s Open Source License, and for
everyone who has put out software under the GPL to relicense it under
the OSL.
</quote>
regards,
alexander.
Rahul Dhesi
>I'll do you one better, and that's the difference between what an
>exclusive license means under the law, and what most people think it
>means....
But you didn't do me one better.
You had asserted that the GPL might not mean what reasonable persons
thought it meant. I countered by saying that licenses written in
L-English are far more difficult for reasonable persons to understand
than the GPL is. I provided a specific example: A license written in
L-English in which "may return" apparently means "may not return". I
asked a fairly specific question: "Which portions of the GPL do you
think are likely to be more surprising to reasonable persons than the
example above?" You followed up to my posting but you did not answer
the question. How is not answering the question doing me "one better"?
By the way, the GPL does not use the word 'exclusive', so what people
think 'exclusive' means does not affect the meaning of the GPL.
I feel I'm arguing with PTRAVEL! :-)
--
Rahul
Alexander Terekhov
Rahul Dhesi wrote:
[...]
> I feel I'm arguing with PTRAVEL! :-)
Hey, <http://gplv3.fsf.org/suggest-a-shirt>.
Be a good GNUtian.
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
>
> Rahul Dhesi wrote:
> [...]
> > I feel I'm arguing with PTRAVEL! :-)
>
> Hey, <http://gplv3.fsf.org/suggest-a-shirt>.
>
> Be a good GNUtian.
"The intellectual property be damned, long live GPL software" must be
it.
regards,
alexander.
Alexander Terekhov
Lee Hollaar wrote:
[...]
> It talks about "derived"
> works which don't seem to be the same as "derivative works." And
> the explanations from RMS and others often make little sense, as
> in the case where something was a derived work until somebody wrote
> a non-GPLed math library compatible with the GPLed one.
No. GPL "derived" works means "derivative under GNU law" works.
http://web.novalis.org/talks/compliance-for-developers/slide-49.html
[begin textual copying]
July 27, 2004 GPL Compliance for Software Developers Legal notes
----------------------------------------------------------------
Legal notes
Static linking creates a derivative work through textual copying
Most dynamic linking cases involve distributing the library
Still a derivative work:
Dynamic linking
Distributing only the executable (testtriangle)
Still a derivative work:
Distributing the source code of software which links to a library
when that library is the only software to provide that interface
-----------------------------------------------------------------
Copyright Š 2004, Free Software Foundation. Verbatim copying
permitted provided this notice is preserved.
[end textual copying]
Everything on your computer "as a whole" is now a derivative
work of FSF's "legal notes" -- you've created it "through
textual copying" by loading this message. All your base are
belong to the GNU Republic, you know.
regards,
alexander.
Alexander Terekhov
Lee Hollaar wrote:
>
> In article <tofqf.16920$eo....@read1.cgocable.net> "CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> writes:
> >But in its definition of "License," Black's states that, "A license is not a
> >contract ..."
> >
> >not sure whether it applies to strictly the context of the paragraph in
> >which it appears, or, to the entire definition of "license."
>
> It would be helpful if you did post the entire definition, or at least
> the paragraph containing the phrase, so that one can see the context
> in which it was used.
A permit, granted by an appropriate governmental
body, generally for a consideration, to a person, firm,
or corporation ... to carry on some business subject to
regulation under the police power. A license is not a
contract between the state and the licensee, but is a
mere personal permit. Neither is it property or a
property right.
I suppose.
And in the GNU Republic... distributing software is permitted
under the GPL and only the GPL. Of course it is neither a
property nor a property right. It's quite simple, really. The
GPL is not a contract, indeed. In the GNU Republic, that is.
regards,
alexander.
CJohn Zammit
straightening me out.
Dedication to the public domain might be something that the folks at FSF
should consider ... if they are really serious about "free" software.
All the best for the Holiday Season.
Roger Schlafly
> Dedication to the public domain might be something that the folks at FSF
> should consider ... if they are really serious about "free" software.
No, that is not what they want. They want "free" as in
free speech, not free beer.
If my explanation doesn't make any sense to you, then
you'll have to read some of RMS's rants.
CJohn Zammit
news:b152a$43ab39b0$943f91b6$24...@STARBAND.NET...
Alexander Terekhov
CJohn Zammit
news:43ABC49C...@web.de...
From the first link:
"Stallman as the founder of Software Anarchism"
[Yawn]
From the second link:
"Readers with strong allergy to spelling and grammar errors are advised to
avoid reading of this draft."
I'd say that, readers with even an ounce of functioning brain-cells ought
not read this crap-posing-as-intellectual-discourse.
Nah, I take that back ... it's good for a laugh!
Josh Dougherty
news:bBDqf.11213$ph....@read2.cgocable.net...
The FSF is apparently interested in every user having the freedom to copy,
use and change the software. The GPL is so that when they release a piece
of software, Microsoft or some such doesn't just make some incompatible
change to it, and/or change it and patent it, and then take those freedoms
away from every subsequent user of the software, which is what would be the
case if it was put in the public domain.
Without copyright or patent law there's no GPL, but then not much need for
it either. It seems like a good compromise given the existence of such
laws, as it would seem to provide for more freedom for more people, denying
only the "freedom" to make a change and then take all the freedoms away from
everyone else thereafter.
Alexander Terekhov
CJohn Zammit wrote:
[...]
> From the first link:
> "Stallman as the founder of Software Anarchism"
http://emoglen.law.columbia.edu/my_pubs/anarchism.html
(Anarchism Triumphant: Free Software and the Death of Copyright)
----
The spread of the Linux operating system kernel has directed
attention at the free software movement. This paper shows why
free software, far from being a marginal participant in the
commercial software market, is the vital first step in the
withering away of the intellectual property system.
----
regards,
alexander.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> Without copyright or patent law there's no GPL, but then not much need for
> it either.
Nah. In the GNU Republic there's GNU law -- distributing software under
any agreement other than the GPL (hint: it's not a contract or a property
right in the GNU Republic) or "GPL compatible" agreement (but that's for
extra fee) is a felony.
regards,
alexander.
Josh Dougherty
Perhaps you should be posting in rec.arts.sf.misc.
Alexander Terekhov
Well take this, Josh.
http://www.gnu.org/philosophy/copyright-versus-community.html
<quote>
RMS: Right. There would have also to be a condition, a law that
to sell copies of the software to the public the source code must
be deposited somewhere ... So it could be deposited say, with the
library of congress in the US, and I think other countries have
similar institutions where copies of published books get placed,
... And of course, if the source code didn't correspond to the
executable that would be fraud, and in fact if it really
corresponds then they ought to be able to check that very easily
when the work is published initially so you're publishing the
source code and somebody there says alright "dot slash configure
dot slash make" and sees if produces the same executables and uh.
So you're right, just eliminating copyright would not make
software free.
AM5: Um libre
RMS: Right.
</quote>
regards,
alexander.
Josh Dougherty
He's not actually talking about a copyright free world here, despite saying
"eliminating" at the end. The preceding discussion was entirely about a
world with shorter copyrights: "RMS: ... For example, maybe some aspects of
copyright for movies should last for longer ... Meanwhile for software, I
suspect that a three year copyright would be enough...".
And the question preceding the answer above is:
"AM4: The problem with this change in the copyright laws for three [year
copyrights] would be that you wouldn't get the sources."
So this isn't anything I was talking about. The law he's proposing for his
copyright world though seems reasonable enough, and far less oppressive and
far more free, as instead of millions or billions of downstream users being
restrained from using, copying and changing the software, one user is
restrained from making a change and then using a law to deny all those
freedoms to subsequent millions or billions of users. If that seems less
free or more oppressive to you, you're smoking crack, or you're the _one
user_, and you're pissed that you won't be allowed to use copyright law to
take away the freedoms of those millions or billions of users for your
personal financial gain.
I don't think such a law is necessary in a copyright free world however.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> He's not actually talking about a copyright free world here, despite saying
> "eliminating" at the end. The preceding discussion was entirely about a
> world with shorter copyrights: "RMS: ... For example, maybe some aspects of
> copyright for movies should last for longer ... Meanwhile for software, I
> suspect that a three year copyright would be enough...".
Yeah.
"if we had to wait three years in some cases for programs to
become free... well, that's no disaster. To be using three
years old software is not a disaster."
It IS a copyright free world in the RMS's village were using
less than three years old software is a felony.
Oh, BTW, it reminds me of...
http://www.libertarian.co.uk/lapubs/libhe/libhe023.pdf
<quote>
Tucker – amongst others – remarked upon something very
strange about intellectual property as the concept was oper-
ationalised: it tended to be of only a limited duration with
the legal protection of a copyright or patent being only for a
finite number of years. He argued that it would seem very
odd indeed if, by some legitimate means, one acquired title
to an item of mundane property only for the State, enforced
if necessary by its agencies, to decree that after an arbitrary
number of years anyone could come along and use it. If
property rights could be said to inhere at all to intellectual
property then, to be consistent with mundane property, they
ought to be of unlimited duration until title is voluntarily
relinquished in some manner, the new owner then gaining
enduring property rights identical to those of the former
owner.
In addition, Tucker noted that, whereas the thieves of mun-
dane property were considered criminals and often jailed,
the ‘thieves’ of intellectual property were only arraigned in
civil courts, often with much difficulty, and even if found
guilty only punished by fines.
Tucker suggested that this limited duration feature of intel-
lectual property, and the very different punishment meted
out to those who transgressed it, suggested that many of
those who publicly upheld the notion were, at least intui-
tively, in fact unsure as to its validity.
(To show that the debate over the legitimacy of intellectual
property was to be found even amongst the individualist an-
archists, a frequent contributor to Liberty, Victor Yarros,
having for various reasons decided that intellectual property
was a legitimate concept, then agreed with Tucker on this
^^^^^^^^^^^^^^^^^^^^^^
particular element of the issue and declared that such rights
as protected by patents and copyright should indeed be per-
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
manent. This, of course, meant that Yarros’s conclusions on
^^^^^^
the subject ended up as the exact inversion of Tucker’s. See
Brooks (1994: pp. 165-180) for more details.)
</quote>
;-)
[... distributing software in the GNU Republic and felony ...]
> I don't think such a law is necessary in a copyright free world however.
"RMS: ... the source code might not be available or they might
try to use contracts to restrict the users instead. So making
software free is not as simple as ending copyright on
software: it's amore complex situation than that. In fact, if
copyright were simply abolished from software then we would
no longer be able to use copyleft to protect the free status
of a program but meanwhile the software privateers could use
other methods--contracts or withhlding the source to make
software proprietary. So what would mean is, if we release a
free program some greedy bastard could make a modified
version and publish just the binaries and make people sign
non-disclosure agreements for them. We would no longer have
a way to stop them."
And what say you?
regards,
alexander.
CJohn Zammit
news:t-2dnbXj35N...@comcast.com...
The spirits of the Sophists must be having a ball in their graves. Such
muddled reasoning makes them proud.
Josh Dougherty
>
> Josh Dougherty wrote:
> [...]
> > He's not actually talking about a copyright free world here, despite
saying
> > "eliminating" at the end. The preceding discussion was entirely about a
> > world with shorter copyrights: "RMS: ... For example, maybe some
aspects of
> > copyright for movies should last for longer ... Meanwhile for software,
I
> > suspect that a three year copyright would be enough...".
>
> Yeah.
>
> "if we had to wait three years in some cases for programs to
> become free... well, that's no disaster. To be using three
> years old software is not a disaster."
>
> It IS a copyright free world in the RMS's village were using
> less than three years old software is a felony.
>
> Oh, BTW, it reminds me of...
>
> http://www.libertarian.co.uk/lapubs/libhe/libhe023.pdf
>
> <quote>
>
I'm not sure what the point of this quotation is. What is the relevance of
Yarros thinking, unlike Tucker, that such rights are legitimate and thereby
inverting Tucker's views? Who cares? Two guys disagreeing about the issue
doesn't seem very remarkable to me.
> [... distributing software in the GNU Republic and felony ...]
>
> > I don't think such a law is necessary in a copyright free world however.
>
> "RMS: ... the source code might not be available or they might
> try to use contracts to restrict the users instead. So making
> software free is not as simple as ending copyright on
> software: it's amore complex situation than that. In fact, if
> copyright were simply abolished from software then we would
> no longer be able to use copyleft to protect the free status
> of a program but meanwhile the software privateers could use
> other methods--contracts or withhlding the source to make
> software proprietary. So what would mean is, if we release a
> free program some greedy bastard could make a modified
> version and publish just the binaries and make people sign
> non-disclosure agreements for them. We would no longer have
> a way to stop them."
>
> And what say you?
I say what I said before.
First of all, I'm not some kind of Stallman disciple. In my whole life I've
only read a few of his articles and listened to a couple of his speeches
online. I didn't know who Eben Moglen was until you mentioned him a week
ago, though I think I had read something of his before without knowing who
he was or remembering. If my views are somehow different than Stallman's or
Moglen's, I don't care. I'd happily disagree, or I'd consider their views
and change my mind if I agree with their argument, but I'm not here to
defend any particular proposal of theirs. I'm also not a software expert.
I'm a musician, and if any particular area of IP has informed my views, it's
in the world of music, not software.
That said, I tend to disagree with RMS' proposal as I currently understand
it, though again, I have not read an entire argument for it. I, first of
all, don't necessarily think it's a huge problem to have some proprietary
software exist, or to not have every bit of software be free software.
Without copyright law, this would only take place through trade secrets, and
I don't really mind people keeping secrets. I think most software in such a
world would be free software, but there might be some proprietary in cases
where trade secrets were maintained. This doesn't seem like a very big deal
to me, or that it would be anything but a marginal phenomenon.
If this is at all a problem, I don't think you need his law. Just eliminate
state protection of trade secrets, which should be eliminated alongside
copyright law anyway. Then all you have is an individual trying to keep a
secret, and if it leaks it leaks. That doesn't seem like a big problem to
me, even if some people manage to succeed in keeping secrets. It may not be
morally correct, as Stallman argues, but I don't think law needs to enforce
every aspect of morality.
It seems to me that most such problems could be addressed by dropping laws
that uphold proprietary software, not adding laws to enforce free software.
For instance, if non-disclosure agreements or contracts were a problem, then
Stallman might say we should make a law suppressing non-disclosure
agreements and contracts. Before bothering with something like that, I'd
say why not just say the state will not enforce any such agreements with
software, just as it would not enforce any contract where someone signed
themselves into slavery? Problem solved. In the end though, Stallman's
proposal is still less oppressive than current copyright law, for the
reasons I outlined, even though it would not be my proposal.
Josh Dougherty
Brilliant argument CJohn.
Bruce Hayden
> A permit, granted by an appropriate governmental
> body, generally for a consideration, to a person, firm,
> or corporation ... to carry on some business subject to
> regulation under the police power. A license is not a
> contract between the state and the licensee, but is a
> mere personal permit. Neither is it property or a
> property right.
Well, that is one type of license. But that is not what we
are talking about with GNU, etc. That is not a license from
the state to someone else, but is rather a license from someone
like the Free Software Foundation to some other party.
> I suppose.
>
> And in the GNU Republic... distributing software is permitted
> under the GPL and only the GPL. Of course it is neither a
> property nor a property right. It's quite simple, really. The
> GPL is not a contract, indeed. In the GNU Republic, that is.
I agree with GNU. The GPL is a contract.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden www.softpats.com
Dillon, Colorado bha...@ieee.org
Phoenix, Arizona bha...@highdown.com
Bruce Hayden
> On Wed, 21 Dec 2005 14:15:34 -0700 (MST), Lee Hollaar
> <hol...@antitrust.cs.utah.edu> wrote:
>
>>One has to ask oneself whether it makes any difference if the GPL
>>is a "contract" or not, keeping in mind that there hasn't been any
>>case where the FSF has sued anybody over the GPL. I suspect that
>>if they did sue somebody, they would throw in a breach of contract
>>claim just in case.
>
> I think one possible impact is that if the GPL is not a contract, it
> probably could not be enforced in state court, and it might be
> impossible to enforce the license against state government infringers.
But it is a contract. It just is a somewhat ambiguous contract.
If it is not a contract, then it is not a license, and if it
is not a license, then using the software protected by it would
be infringement. The only reason that you aren't infringing
by using GPL protected software is that the GPL grants you
the right to use the software under specific circumstances.
Bruce Hayden
> In article <docius$hdp$1...@blue.rahul.net>,
> Rahul Dhesi <c.c....@XReXXIntel.usenet.us.com> wrote:
>
>>Only those people who wish to take
>>advantage of GPL-licensed software while doing their best to avoid
>>actually conforming to the GPL actually care where the exact boundary
>>is.
> That's an unfair characterization. There are many perfectly good
> reasons to want to know exactly how far your obligations go.
Which is why there are attorneys.
> For example, if our engineers consider using a piece of GPL software
> in a product that uses third-party software as well, I need to know
> our obligations. Do we need to acquire rights to release that
> third-party software under GPL as well? Or should we go look for an
> alternative to the GPL software?
You need to have your attorney determine at least the legal
side of this.
> This has nothing to do with "wanting to avoid the GPL".
>
> Of course, you could say "just make your whole product GPL".
> That nicely avoids the question, and probably would make RMS
> very happy. But it's not practical.
I have given precisely this legal advise.
>>I think
>>courts are quite capable of taking something written in English and
>>mapping it to L-English, based on what the writer's obvious intent must
>>have been.
> True, _if_ the writer's intent is obvious. This is not true for
> the GPL. The text contradicts itself in several places, which
> makes it very difficult to determine what RMS meant when he
> wrote it. And that in my opinion is more of a reason why people
> argue over what it is supposed to mean.
Yes, there are inconsistencies. But overall, it is fairly
straight forward. Yes, it would have been better if it had
been written by an attorney. But we deal with this sort
of ambiguity all the time. There are innumerable implied and
semi-implied copyright, etc. contracts/licenses out there
that are more ambiguous than that, and we do just fine,
most of the time.
Bruce Hayden
>> And in the GNU Republic... distributing software is permitted under
>> the GPL and only the GPL. Of course it is neither a property nor a
>> property right. It's quite simple, really. The GPL is not a contract,
>> indeed. In the GNU Republic, that is.
>
> I agree with GNU. The GPL is a contract.
Let's start with the basics. 17 USC 106 lays out the
exclusive rights of a copyright holder. They include the
right to make copies and to authorize others to do so.
If the copyright owner doesn't grant you the right to make
copies, and you make them, then you are infringing unless
your use falls under an exception, such as Fair Use (17 USC 107).
Most of the copying, distribution, etc. of GPL protected
software would not be allowed as Fair Use, and, in particular,
if done by companies, such as IBM, trying to make a profit
off of it.
So, absent authorization, most copying, distribution, etc.
of GPL protected software would be infringing. Since those
interested in copying, etc., are not the copyright owner,
how do they get authorization? Via the GPL. But it states
fairly explicitly, if you do this, you are authorized to
copy, etc., the software. If you do that, you aren't.
That is a contract. The owner of the software is making an
offer. If you want his authorization to copy, distribute,
etc., then you have to agree to his terms. This is called
a unilateral contract. And the GPL states that by copying,
etc., you agree to the terms, and that if you don't agree
to the terms, you cannot copy, etc. the software.
Beating a dead horse, but let's call the party owning the
copyright to the software A, and the party wanting to use
the software B. B's consideration is the authorization to
copy, distribute, etc. the software. A's consideration for
allowing this is B's agreement to conform to the the
requirements of the GPL. Hence, mutual consideration.
A makes a unilateral offer, and B accepts through his
action of copying, etc. the software. We have offer and
acceptance, and mutual consideration.
Bruce Hayden
> One has to ask oneself whether it makes any difference if the GPL
> is a "contract" or not, keeping in mind that there hasn't been any
> case where the FSF has sued anybody over the GPL. I suspect that
> if they did sue somebody, they would throw in a breach of contract
> claim just in case.
If it is not a contract, then those copying, distributing, etc.
the GPL protected software would be infringing the copyright
to the software. No one wants that.
> It will be interesting to see what the upcoming third version of
> the GPL will be like, considering that it is being written by somebody
> with legal knowledge, and not just RMS.
Hopefully, more legal, less RMS.
Alexander Terekhov
Bruce Hayden wrote:
>
> Bruce Hayden wrote:
> >> And in the GNU Republic... distributing software is permitted under
> >> the GPL and only the GPL. Of course it is neither a property nor a
> >> property right. It's quite simple, really. The GPL is not a contract,
> >> indeed. In the GNU Republic, that is.
> >
> > I agree with GNU. The GPL is a contract.
Then you disagree with GNU.
>
> Let's start with the basics. 17 USC 106 lays out the
> exclusive rights of a copyright holder. They include the
> right to make copies and to authorize others to do so.
> If the copyright owner doesn't grant you the right to make
> copies, and you make them, then you are infringing unless
> your use falls under an exception, such as Fair Use (17 USC 107).
> Most of the copying, distribution, etc. of GPL protected
> software would not be allowed as Fair Use, and, in particular,
> if done by companies, such as IBM, trying to make a profit
> off of it.
IBM contributes to some GPLed projects, but it's no secret that
IBM's policy is to not distribute any GPL/LGPL code that IBM
doesn't hold copyrght to.
>
> So, absent authorization, most copying, distribution, etc.
> of GPL protected software would be infringing.
One can download GPLed object code without "I agree" and resell
those copies under any terms. First sale.
regards,
alexander.
Alexander Terekhov
Bruce Hayden wrote:
[...]
> Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
> My work may be copied in whole or part, with proper attribution,
> as long as the copying is not for commercial gain.
Wanna see a CD with collection of your postings under this license on
ebay? I can arrange it. I gather that you don't seem to grok first
sale just like GNUtians.
regards,
alexander.
Alexander Terekhov
Bruce Hayden wrote:
[...]
> The only reason that you aren't infringing
> by using GPL protected software is that the GPL grants you
> the right to use the software under specific circumstances.
Or perhaps because the GPL is invalid on the grounds of copyright
misuse.
regards,
alexander.
Alexander Terekhov
Just to clarify, I meant impunity to infringe.
regards,
alexander.
Bruce E. Hayden
>
>>So, absent authorization, most copying, distribution, etc.
>>of GPL protected software would be infringing.
>
> One can download GPLed object code without "I agree" and resell
> those copies under any terms. First sale.
Nope. First Sale applies to specific copies.
You can't install software on a computer without
making additional copies, and you can't run it
without making more copies. None of those copies
would be covered by First Sale.
Each time you write a copy of software to disk,
whether to install it, to cache, it, etc., it
constitutes making a copy. Every time you load
software into memory, you are making additional
copies. And, no, I am not making this up.
There is a limited provision under 17 USC 117
for some limited copying in order to run a copy
of a program - if you have a legal copy in
the first place. But you can't keep one copy
and sell or transfer others.
In any case, why do you think that it is legal
to download GPL software without agreeing to
the GPL in the first place?
Bruce E. Hayden
>>Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
>>My work may be copied in whole or part, with proper attribution,
>>as long as the copying is not for commercial gain.
>
> Wanna see a CD with collection of your postings under this license on
> ebay? I can arrange it. I gather that you don't seem to grok first
> sale just like GNUtians.
I grok First Sale just fine. You don't, esp. in view of the
case law applying copyright law to computers. In particular,
you seem to be missing the fact that every time you make a
copy of a work, you are, well, making a "copy", which is
"reproduction" under 17 USC 106.
Let's do this slowly, since you seem to misunderstand copyright law
as it is defined in the United States (and thus, applies to ebay).
The exclusive rights of a copyright holder are defined in 17 USC 106:
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;
(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.
A "copy" is defined in 17 USC 101 as:
“Copies” are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term “copies”
includes the material object, other than a phonorecord, in which the
work is first fixed.
Courts have defined copying to include every time that a
work is written to disk, CD, etc., as well as every time
software (or other works) is loaded in memory. Each time
you write a work to disk, CD, etc., you create another
"copy" or "phonorecord".
Combining all this, every time you make a "copy" or a
"phonorecord", you are engaging in "reproduction".
And, for it to be non-infringing, you either need to
be the copyright owner, or be authorized by him to make
the copy or phonorecord.
There are a couple of exceptions to this, notably Fair
Use under 17 USC 107 and running computer programs that
you own under 17 USC 117, neither of which is applicable
here.
Which brings us to First Sale, defined under 17 USC 109:
(a) Notwithstanding the provisions of section 106 (3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord...
Nowhere in that statute is there any right granted to make
additional "copies" or "phonrecords". None. Zip. Zero. Nada.
Also note that the statute further provides:
(d) The privileges prescribed by subsections (a) and (c) do not, unless
authorized by the copyright owner, extend to any person who has acquired
possession of the copy or phonorecord from the copyright owner, by
rental, lease, loan, or otherwise, without acquiring ownership of it.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
Bruce E. Hayden
And what is the legal basis for this statement?
Besides, if the GPL is invalid, then by necessity,
all copies you make of the software are infringing
because they aren't authorized. It is the GPL that
"authorizes" your making of copies (see 17 USC 106).
Isaac
> Alexander Terekhov wrote:
>>
>>>So, absent authorization, most copying, distribution, etc.
>>>of GPL protected software would be infringing.
>>
>> One can download GPLed object code without "I agree" and resell
>> those copies under any terms. First sale.
>
> Nope. First Sale applies to specific copies.
> You can't install software on a computer without
> making additional copies, and you can't run it
> without making more copies. None of those copies
> would be covered by First Sale.
Title 17 says that First Sale applies to lawfully made copies, and that
owners of copies can do the copying and adapting necessary to run their
software without any further authorization from the copyright holder.
> In any case, why do you think that it is legal
> to download GPL software without agreeing to
> the GPL in the first place?
I think this is the real obstacle to carrying on as Mr. Terekhov's describes.
I also think that the question of whether a copy is lawfully made does not
end with looking at the circumstances only of the initial making of the copy.
For example a copy made under circumstances that constitute fair use might
not continue to be fair if months later the decision is made to sell the
copy at a flea market or to display the copy publicly.
Isaac
Bruce E. Hayden
>>>The only reason that you aren't infringing
>>>by using GPL protected software is that the GPL grants you
>>>the right to use the software under specific circumstances.
>>
>>Or perhaps because the GPL is invalid on the grounds of copyright
>>misuse.
> Just to clarify, I meant impunity to infringe.
Ok, do you have any case law to back this up?
Where the GPL was determined to be copyright misuse,
and thus, anyone who wanted to could infringe their
copyrights at will? I would be very interested in it.
Otherwise, I am left with the impression that you
think that because you don't like the GPL, you can
rip off software protected by it at will.
Isaac
wrote:
> Isaac wrote:
>> On Wed, 21 Dec 2005 14:15:34 -0700 (MST), Lee Hollaar
>> <hol...@antitrust.cs.utah.edu> wrote:
>>
>>>One has to ask oneself whether it makes any difference if the GPL
>>>is a "contract" or not, keeping in mind that there hasn't been any
>>>case where the FSF has sued anybody over the GPL. I suspect that
>>>if they did sue somebody, they would throw in a breach of contract
>>>claim just in case.
>>
>> I think one possible impact is that if the GPL is not a contract, it
>> probably could not be enforced in state court, and it might be
>> impossible to enforce the license against state government infringers.
>
> But it is a contract. It just is a somewhat ambiguous contract.
Could you expand on what you mean by an ambigous contract?
Isaac
Bruce E. Hayden
> IBM contributes to some GPLed projects, but it's no secret that
> IBM's policy is to not distribute any GPL/LGPL code that IBM
> doesn't hold copyrght to.
Hey, when I was working as in-house counsel, I was
fairly militant against any use of GPL software in
anything that a customer might see. It made me
quite unpopular with the engineering community on
occasion - they invariably had found some nice piece
of code that they wanted to include in one of our
products. Sorry. Not on my watch.
Bruce E. Hayden
> On Sat, 24 Dec 2005 17:20:59 -0700, Bruce E. Hayden <bha...@ieee.org> wrote:
>
>>Alexander Terekhov wrote:
>>
>>>>So, absent authorization, most copying, distribution, etc.
>>>>of GPL protected software would be infringing.
>>>
>>>One can download GPLed object code without "I agree" and resell
>>>those copies under any terms. First sale.
>>
>>Nope. First Sale applies to specific copies.
>>You can't install software on a computer without
>>making additional copies, and you can't run it
>>without making more copies. None of those copies
>>would be covered by First Sale.
> Title 17 says that First Sale applies to lawfully made copies, and that
> owners of copies can do the copying and adapting necessary to run their
> software without any further authorization from the copyright holder.
I think that you are including both 17 USC 109
(First Sale) and 17 USC 117 (running programs).
So, yes, if I buy a CD containing software, I can
sell that CD to someone else, and I can also run
the program to my heart's content. But note that
17 USC 117 has some additional provisions, notably (b):
(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—
Any exact copies prepared in accordance with the provisions of this
section may be leased, sold, or otherwise transferred, along with the
copy from which such copies were prepared, only as part of the lease,
sale, or other transfer of all rights in the program. Adaptations so
prepared may be transferred only with the authorization of the copyright
owner.
This means that if you transfer ownership of your
copy, you need to transfer ALL copies.
In any case, both these provisions are almost worthless
for Alexander's purposes. Neither allows making any
other copies of the work that can be sold, and that
is what he is trying to do - bootstrap creation and
distribution of other copies from the making or
ownership of one legal copy.
And that isn't going to work, because in order to
distribute a program, more copies have to by necessity
be made. At a minimum, each person receiving a copy
of the software has required the making of at least
one "copy", and that "copy" is not covered by either
17 USC 109 or 117.
Oh, and in most cases, the legitimate "copy" that
we are talking about is the one that was downloaded
onto someone's hard drive. Selling this would require,
by necessity, selling the hard drive along with it.
>
>>In any case, why do you think that it is legal
>>to download GPL software without agreeing to
>>the GPL in the first place?
>
> I think this is the real obstacle to carrying on as Mr. Terekhov's describes.
>
> I also think that the question of whether a copy is lawfully made does not
> end with looking at the circumstances only of the initial making of the copy.
> For example a copy made under circumstances that constitute fair use might
> not continue to be fair if months later the decision is made to sell the
> copy at a flea market or to display the copy publicly.
I am not sure of this. I do agree though that a court
is going to look carefully at anyone who tries to misuse
Fair Use in this way. One time, maybe. But Mr. Terekhov
is really talking about doing this on a routine basis.
He would, in essence, have to argue that on, say, Mondays,
he intends to treat the software in such a way that it would
qualify as Fair Use, but then on Tuesdays, he changes his mind.
Then, next week, he does the same thing. No. Won't work.
Then again, is a copy made under Fair Use "lawfully made"
as required under First Sale? It isn't infringing, but
I am not yet convinced it is lawfully made. This may
be too hair splitting - after all, they could have written
First Sale to specifically state that it applies to
copies made by the copyright owner or under his authority,
and that would have eliminated Fair Use copies.
Isaac
> Isaac wrote:
>
>> On Sat, 24 Dec 2005 17:20:59 -0700, Bruce E. Hayden <bha...@ieee.org> wrote:
>>
>>>Alexander Terekhov wrote:
>>>
>>>>>So, absent authorization, most copying, distribution, etc.
>>>>>of GPL protected software would be infringing.
>>>>
>>>>One can download GPLed object code without "I agree" and resell
>>>>those copies under any terms. First sale.
>>>
>>>Nope. First Sale applies to specific copies.
>>>You can't install software on a computer without
>>>making additional copies, and you can't run it
>>>without making more copies. None of those copies
>>>would be covered by First Sale.
>
>> Title 17 says that First Sale applies to lawfully made copies, and that
>> owners of copies can do the copying and adapting necessary to run their
>> software without any further authorization from the copyright holder.
>
> I think that you are including both 17 USC 109
> (First Sale) and 17 USC 117 (running programs).
Yes I was.
>
> So, yes, if I buy a CD containing software, I can
> sell that CD to someone else, and I can also run
> the program to my heart's content. But note that
> 17 USC 117 has some additional provisions, notably (b):
> (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—
> Any exact copies prepared in accordance with the provisions of this
> section may be leased, sold, or otherwise transferred, along with the
> copy from which such copies were prepared, only as part of the lease,
> sale, or other transfer of all rights in the program. Adaptations so
> prepared may be transferred only with the authorization of the copyright
> owner.
>
> This means that if you transfer ownership of your
> copy, you need to transfer ALL copies.
>
> In any case, both these provisions are almost worthless
> for Alexander's purposes. Neither allows making any
> other copies of the work that can be sold, and that
> is what he is trying to do - bootstrap creation and
> distribution of other copies from the making or
> ownership of one legal copy.
I agree with you. I alluded to 35 USC 117 only because you seemed to be
suggesting limitations to installing and running the programs without
permission. If the software cannot be installed without making extra
copies, then 35 USC 117 allows making those additional copies.
But as you suggest 35 USC 117 does not provide a mechanism for making
additional copies to be distributed. Such copies must be distributed
with the originals. However it does provide a mechanism for making
adapted copies.
The only thing required for installing programs is acquiring lawful
copies. Free lawful copies of many GPL works are quite easy to come
by. Further, the GPL indicates that actually running the programs is
outside of the scope of the license terms.
Further, my understanding is that Alexander was proposing lawfully acquiring
and distributing copies and not making new copies. If the law requires that
a backup or adapted copy be distributed with the originals, Alexander would
do that and then acquire, at no expense, a new copy. Rinse lather repeat.
You ask how a copy would be acquired without accepting the GPL.
I'm not aware of an expectation or requirement to accept the GPL before
downloading the software. Free software is often made available for
downloading without any notice obtained before, during or after the download
that the copies obtained must be deleted if the GPL is not accepted.
Anyone can obtain GPLd software, and provided only that they include source
code, operate a free or paid distribution ftp site in which they allow
GPLd software to be downloaded without restriction.
Isaac
Bruce E. Hayden
Gives away what you really do for a living. It is 17 USC 117.
35 USC 117 is titled "Death or incapacity of inventor", and
hardly seems relevant here. (Yes, I know what you meant, just
a little kidding here - I too deal primarily with 35 USC).
> But as you suggest 35 USC 117 does not provide a mechanism for making
> additional copies to be distributed. Such copies must be distributed
> with the originals. However it does provide a mechanism for making
> adapted copies.
Yeh, but I think that you need to read the statute a bit closer.
Note first that (a)(1) requires "that such a new copy or adaptation is
created as an essential step in the utilization of the computer program
in conjunction with a machine and that it is used in no other manner"
and (b) that "Adaptations so prepared may be transferred only with the
authorization of the copyright owner."
> The only thing required for installing programs is acquiring lawful
> copies. Free lawful copies of many GPL works are quite easy to come
> by. Further, the GPL indicates that actually running the programs is
> outside of the scope of the license terms.
>
> Further, my understanding is that Alexander was proposing lawfully acquiring
> and distributing copies and not making new copies. If the law requires that
> a backup or adapted copy be distributed with the originals, Alexander would
> do that and then acquire, at no expense, a new copy. Rinse lather repeat.
Problem is that when he downloads it to his hard drive, that
is one copy. And, as you point out below, that may be legal.
But where is the authorization for the other copies he is
making? Not from 17 USC 117 because he would have to ship
his hard disk then.
> You ask how a copy would be acquired without accepting the GPL.
>
> I'm not aware of an expectation or requirement to accept the GPL before
> downloading the software. Free software is often made available for
> downloading without any notice obtained before, during or after the download
> that the copies obtained must be deleted if the GPL is not accepted.
That gets him a copy on his hard drive. The problem is
making additional copies not incident to execution. If
he depends on 17 USC 117, he needs to ship his hard drive too.
> Anyone can obtain GPLd software, and provided only that they include source
> code, operate a free or paid distribution ftp site in which they allow
> GPLd software to be downloaded without restriction.
In other words, as long as you essentially stay with the
GPL, you can distribute GPL software. Fine. Happens all
the time. The question I think though was how he could
distribute GPL software and not conform to the GPL.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
> >
> >>So, absent authorization, most copying, distribution, etc.
> >>of GPL protected software would be infringing.
> >
> > One can download GPLed object code without "I agree" and resell
> > those copies under any terms. First sale.
>
> Nope. First Sale applies to specific copies.
Sure. It applies to specific copies lawfully made in the course of
downloading from the authorized source.
> You can't install software on a computer without
> making additional copies, and you can't run it
> without making more copies. None of those copies
> would be covered by First Sale.
Those are covered by 17 USC 117.
>
> Each time you write a copy of software to disk,
> whether to install it, to cache, it, etc., it
> constitutes making a copy. Every time you load
> software into memory, you are making additional
> copies. And, no, I am not making this up.
>
> There is a limited provision under 17 USC 117
> for some limited copying in order to run a copy
> of a program - if you have a legal copy in
> the first place. But you can't keep one copy
> and sell or transfer others.
I keep nothing. If I need more, I can download more.
>
> In any case, why do you think that it is legal
> to download GPL software without agreeing to
> the GPL in the first place?
And why do think that it is not legal?
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
<quote>
unlike the user of Netscape Navigator or other click-wrap or shrink-
wrap licensees, the individual obtaining SmartDownload is not made
aware that he is entering into a contract. SmartDownload is available
from Netscape's web site free of charge. Before downloading the
software, the user need not view any license agreement terms or even
any reference to a license agreement, and need not do anything to
manifest assent to such a license agreement other than actually
taking possession of the product. From the user's vantage point,
SmartDownload could be analogized to a free neighborhood newspaper,
readily obtained from a sidewalk box or supermarket counter without
any exchange with a seller or vender. It is there for the taking.
[...]
Unlike most of his fellow Plaintiffs, Michael Fagan alleges that he
obtained SmartDownload from a shareware web site established and
managed by a third party. Defendants dispute Fagan's allegations,
insisting that the record shows that he must have obtained
SmartDownload from Netscape's web site in the same manner as the
other Plaintiffs discussed above. I need not resolve this factual
dispute. If Fagan in fact obtained SmartDownload from the Netscape
site, his claims are equally subject to my earlier analysis. If,
however, Fagan's version of events is accurate, his argument against
arbitration is stronger than that of the other Plaintiffs. While
Netscape's download page for SmartDownload contains a single brief
and ambiguous reference to the License Agreement, with a link to the
text of the agreement, the ZDNet site15 contains not even such a
reference. The site visitor is invited to click on a hypertext link
to "more information" about SmartDownload. The link leads to a
Netscape web page, which in turn contains a link to the License
Agreement. Assuming, for the sake of argument, that Fagan obtained
SmartDownload from ZDNet, he was even less likely than the other
Plaintiffs to be aware that he was entering into a contract or what
its terms might be, and even less likely to have assented to be
bound by the License Agreement and its arbitration clause.
Therefore, Plaintiff Michael Fagan cannot be compelled
</quote>
I don't think that unrestricted downloads of GNU stuff shall be
treated under law any different.
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
[...]
> Problem is that when he downloads it to his hard drive, that
> is one copy. And, as you point out below, that may be legal.
> But where is the authorization for the other copies he is
> making? Not from 17 USC 117 because he would have to ship
> his hard disk then.
HDD will cost you extra 60 or so USD. I download directly to CD.
regards,
aexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
> >>Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
> >>My work may be copied in whole or part, with proper attribution,
> >>as long as the copying is not for commercial gain.
> >
> > Wanna see a CD with collection of your postings under this license on
> > ebay? I can arrange it. I gather that you don't seem to grok first
> > sale just like GNUtians.
> Let's do this slowly, since you seem to misunderstand copyright law
> as it is defined in the United States (and thus, applies to ebay).
I would make copies pursuant to your license. I'd gift them for no
commercial gain with a notice: will free to put it on ebay, I may even
buy some. What law do you think I'd be breaking?
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
>
> > Bruce Hayden wrote:
> > [...]
> >
> >>The only reason that you aren't infringing
> >>by using GPL protected software is that the GPL grants you
> >>the right to use the software under specific circumstances.
> >
> >
> > Or perhaps because the GPL is invalid on the grounds of copyright
> > misuse.
>
> And what is the legal basis for this statement?
Same legal basis as for IBM's tenth defense (doctrine of copyright misuse)
against SCO. Why?
www.byte.com/documents/s=8276/byt1055784622054/0616_marshall.html
<quote>
GPL
"GPL has the same derivative rights concept [as UNIX],"
according to Sontag...
</quote>
http://www.law.washington.edu/courses/laster/B599_Wi04/Documents/Open_Source_Licensing.pdf
(see Enforceability of Copyleft)
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
> >>>The only reason that you aren't infringing
> >>>by using GPL protected software is that the GPL grants you
> >>>the right to use the software under specific circumstances.
> >>
> >>Or perhaps because the GPL is invalid on the grounds of copyright
> >>misuse.
> > Just to clarify, I meant impunity to infringe.
>
> Ok, do you have any case law to back this up?
See Nadan's paper.
> Where the GPL was determined to be copyright misuse,
> and thus, anyone who wanted to could infringe their
> copyrights at will?
Yep.
http://digital-law-online.info/lpdi1.0/treatise15.html#secII.K
"The penalty for copyright misuse – unenforceability of the copyright in
court until the misuse has been purged and its effects no longer exist –
is tantamount to losing the copyright. "
regards,
alexander.
Isaac
>
> That gets him a copy on his hard drive. The problem is
> making additional copies not incident to execution. If
> he depends on 17 USC 117, he needs to ship his hard drive too.
I hear you. 17 USC 117 is a red herring. I only mentioned it to
address a peripheral point that you introduced.
But downloading can easily be done to a removable medium.
>> Anyone can obtain GPLd software, and provided only that they include source
>> code, operate a free or paid distribution ftp site in which they allow
>> GPLd software to be downloaded without restriction.
>
> In other words, as long as you essentially stay with the
> GPL, you can distribute GPL software. Fine. Happens all
> the time. The question I think though was how he could
> distribute GPL software and not conform to the GPL.
If I operated a site hosting GPLed software, anyone could download
copies from me without any requirement that that they accept a license
from me or the copyright holder before downloading.
It's only when a downloader indulges in some activity reserved to the
copyright holder and not covered by an exception to the copyright holder's
exclusive rights that they need to accept the GPL.
Alexander's argument is that he can download a copy from a site such
as the one I describe and distribute that copy because it is lawfully
made and first sale allows him to distribute lawfully made copies. He
argues that he does not need to accept the GPL to make the copy he
will distribute. I'm suggesting that the weak point of his argument must
be in whether such copies are lawfully made.
Isaac
Alexander Terekhov
Isaac wrote:
[...]
> Alexander's argument is that he can download a copy from a site such
> as the one I describe and distribute that copy because it is lawfully
> made and first sale allows him to distribute lawfully made copies. He
> argues that he does not need to accept the GPL to make the copy he
> will distribute. I'm suggesting that the weak point of his argument must
> be in whether such copies are lawfully made.
< quotes from dmca/sec-104-report-vol-<2|3>.pdf >
Red Hat, Inc.:
Let me just clarify that I don't think anyone today intends to
impact our licensing practices. I haven't seen anything in the
comments, nor have I heard anything today that makes me think
someone does have that intention. What we're concerned about
are unintended consequences of any amendments to Section 109.
The primary difference between digital and nondigital products
with respect to Section 109 is that the former are frequently
licensed. ... product is also available for free downloaded
from the Internet without the printed documentation, without
the box, and without the installation service. Many open source
and free software products also embody the concept of copyleft.
... We are asking that amendments not be recommended that would
jeopardize the ability of open source and free software
licensor to require [blah blah]
Time Warner, Inc.:
We note that the initial downloading of a copy, from an
authorized source to a purchaser's computer, can result in
lawful ownership of a copy stored in a tangible medium.
[but electronic redistribution/move-and-delete of that copy to
downstream recipient is not covered by first sale]
Library Associations:
First, as conceded by Time Warner, digital transmissions can
result in the fixation of a tangible copy. By intentionally
engaging in digital transmissions with the awareness that a
tangible copy is made on the recipient's computer, copyright
owners are indeed transferring ownership of a copy of the work
to lawful recipients. Second, the position advanced by Time
Warner and the Copyright Industry Organizations is premised
on a formalistic reading of a particular codification of the
first sale doctrine. When technological change renders the
literal meaning of a statutory provision ambiguous, that
provision "must be construed in light of its basic purpose"
and "should not be so narrowly construed as to permit evasion
because of changing habits due to new inventions and
discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S.
151, 156-158 (1975). The basic purpose of the first sale
doctrine is to facilitate the continued flow of property
throughout society.
I'm with libraries,
http://www.research.ibm.com/quantuminfo/teleportation oughta be
legal.
regards,
alexander.
Josh Dougherty
news:43AED98B...@web.de...
>
> "Bruce E. Hayden" wrote:
> >
> > Alexander Terekhov wrote:
> > >>>The only reason that you aren't infringing
> > >>>by using GPL protected software is that the GPL grants you
> > >>>the right to use the software under specific circumstances.
> > >>
> > >>Or perhaps because the GPL is invalid on the grounds of copyright
> > >>misuse.
> > > Just to clarify, I meant impunity to infringe.
> >
> > Ok, do you have any case law to back this up?
>
> See Nadan's paper.
>
> > Where the GPL was determined to be copyright misuse,
> > and thus, anyone who wanted to could infringe their
> > copyrights at will?
>
> Yep.
>
> http://digital-law-online.info/lpdi1.0/treatise15.html#secII.K
So "Yep" = No. There is no case law where the GPL was determined to be
copyright misuse. Ok. Thanks.
Josh Dougherty
news:slrndqtqrv...@latveria.castledoom.org...
> On Sun, 25 Dec 2005 09:36:19 -0700, Bruce E. Hayden <bha...@ieee.org>
wrote:
> >
> > That gets him a copy on his hard drive. The problem is
> > making additional copies not incident to execution. If
> > he depends on 17 USC 117, he needs to ship his hard drive too.
>
> I hear you. 17 USC 117 is a red herring. I only mentioned it to
> address a peripheral point that you introduced.
>
> But downloading can easily be done to a removable medium.
>
> >> Anyone can obtain GPLd software, and provided only that they include
source
> >> code, operate a free or paid distribution ftp site in which they allow
> >> GPLd software to be downloaded without restriction.
> >
> > In other words, as long as you essentially stay with the
> > GPL, you can distribute GPL software. Fine. Happens all
> > the time. The question I think though was how he could
> > distribute GPL software and not conform to the GPL.
>
> If I operated a site hosting GPLed software, anyone could download
> copies from me without any requirement that that they accept a license
> from me or the copyright holder before downloading.
>
> It's only when a downloader indulges in some activity reserved to the
> copyright holder and not covered by an exception to the copyright holder's
> exclusive rights that they need to accept the GPL.
Such as making and distributing copies, or distributing derivative works?
> Alexander's argument is that he can download a copy from a site such
> as the one I describe and distribute that copy because it is lawfully
> made and first sale allows him to distribute lawfully made copies. He
> argues that he does not need to accept the GPL to make the copy he
> will distribute.
Alexander is not interested in distributing one legally made copy [call it
Copy 0], be it on a CD or an HD. He's interested in making several other
copies of that copy [Copy 1, Copy 2, Copy 3] and distributing those copies
under a different liscence he wants to impose on those copies.
> I'm suggesting that the weak point of his argument must
> be in whether such copies are lawfully made.
Copy 0 that he made was legal. If he wants to distribute that, he can, but
that's not what he wants to do. He wants to make copy 1, copy 2, copy 3,
and distribute those, while keeping copy 0, which is prohibited under
standard copyright law. Or he wants to make derivative works based on copy
0 and distribute copies of those, which is also prohibited under standard
copyright law.
The only reason he has the freedom to make copy 0 and distribute copies 1,
2, 3, or make and distribute derivative works of copy 0 in the first place
is the GPL.
His argument is that he should be allowed to use those freedoms only allowed
to him by the GPL, and denied him under standard copyright law, but then
dismiss, for his own personal financial gain, and the detriment of all
subsequent users, the conditions on which those freedoms are allowed in the
GPL.
Isaac
wrote:
> "Isaac" <is...@latveria.castledoom.org> wrote in message
> news:slrndqtqrv...@latveria.castledoom.org...
>>
>> copyright holder and not covered by an exception to the copyright holder's
>> exclusive rights that they need to accept the GPL.
>
> Such as making and distributing copies, or distributing derivative works?
There are limits to the copyright holders right to restrict the distribution
of copies. One of those limits is contained in 17 USC 109. We are
discussing such a limit.
> Alexander is not interested in distributing one legally made copy [call it
> Copy 0], be it on a CD or an HD. He's interested in making several other
> copies of that copy [Copy 1, Copy 2, Copy 3] and distributing those copies
> under a different liscence he wants to impose on those copies.
He might well be interested in doing that. But the scenario we are discussing
does not involve doing so.
Isaac
Josh Dougherty
> On Mon, 26 Dec 2005 01:18:08 -0500, Josh Dougherty
<jdoc1...@comcast.net>
> wrote:
> > "Isaac" <is...@latveria.castledoom.org> wrote in message
> > news:slrndqtqrv...@latveria.castledoom.org...
> >>
> >> It's only when a downloader indulges in some activity reserved to the
> >> copyright holder and not covered by an exception to the copyright
holder's
> >> exclusive rights that they need to accept the GPL.
> >
> > Such as making and distributing copies, or distributing derivative
works?
>
> There are limits to the copyright holders right to restrict the
distribution
> of copies. One of those limits is contained in 17 USC 109. We are
> discussing such a limit.
There are no limits to the copyright holders right to restrict making
copies, at least none relevant here. Which means the download is illegal in
the first place, except for the GPL. And Alexander's reading of 17 USC 109
seems bizarre in any case.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> So "Yep" = No. There is no case law where the GPL was determined to be
> copyright misuse. Ok. Thanks.
Footnotes in Nadan's paper aside for a moment, keep an eye on Wallace
v. FSF. Finding of antitrust violation will establish copyright misuse
as well, IIUC.
regards,
alexander.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> Copy 0 that he made was legal.
And you lose.
As for derivatives, they go to a reseller first.
regards,
alexander.
Josh Dougherty
>
> Josh Dougherty wrote:
> [...]
> > Copy 0 that he made was legal.
>
> And you lose.
Lose what?
> As for derivatives, they go to a reseller first.
Not sure what that's supposed to mean.
Josh Dougherty
Afaik, Wallace already got spanked. But whatever keeps your dream alive I
guess.
Bruce E. Hayden
>>So "Yep" = No. There is no case law where the GPL was determined to be
>>copyright misuse. Ok. Thanks.
In other words, since you don't directly answer Josh's question,
there is no case law directly supporting your contention.
> Footnotes in Nadan's paper aside for a moment, keep an eye on Wallace
> v. FSF. Finding of antitrust violation will establish copyright misuse
> as well, IIUC.
As Josh points out, keep dreaming. Yes, a finding of an antitrust
violation MAY lead to a finding of copyright misuse, if the two
are closely tied together. But as noted in the article you cited,
it is extremely rare for courts to find copyright misuse.
Indeed, shortly after Lasercomb, I was involved in trying to
assert it with what I consider much better facts than you have
with the GPL - copyright of a computer program being used to
limit competition in a different field. It went nowhere, despite
Lasercomb.
Bruce E. Hayden
>>>>The only reason that you aren't infringing
>>>>by using GPL protected software is that the GPL grants you
>>>>the right to use the software under specific circumstances.
>>>
>>>
>>>Or perhaps because the GPL is invalid on the grounds of copyright
>>>misuse.
>>
>>And what is the legal basis for this statement?
>
> Same legal basis as for IBM's tenth defense (doctrine of copyright misuse)
> against SCO. Why?
>
> www.byte.com/documents/s=8276/byt1055784622054/0616_marshall.html
>
> <quote>
>
> GPL
>
> "GPL has the same derivative rights concept [as UNIX],"
> according to Sontag...
And Sontag is an expert, why? Because he is a VP at SCO
trying to enforce ATT licenses against AIX, Linux, etc.?
I did read the article, and didn't really find anything there
to support your contention.
> </quote>
>
> http://www.law.washington.edu/courses/laster/B599_Wi04/Documents/Open_Source_Licensing.pdf
> (see Enforceability of Copyleft)
Interesting article. However, you should know that
it was written by an Asst. Gen. Counsel for Sun.
And Sun, of course, is one of the companies hurt worst
by Linux and its OSI licensing model. So, this can best
be seen as legal propaganda by that company.
Oh, and in the article, Sontag points out that Sun
is the one company not in alleged violation of its copyrights.
I should note that in my view his company would be
foolish to raise the defenses that he suggests in real
life, given that he has admitted actual knowledge of
GNU, Linux, etc. licensing provisions, and, thus, his
suggestion that companies not be bound by them because
of lack of click wrap / shrink wrap assent, would not be
available to his company - because he has shown actual
knowledge of their provisions, and lack of that knowledge
is the primary basis for his belief in their
non enforceability. Indeed he says: "If the user has no
notice of the license, she is probably not bound by it."
But, of course, Sun does have knowledge and notice.
Also note that Mr. Terekhov presumably has the same problem
in escaping GPL / OSI licenses.
Bruce E. Hayden
> There are limits to the copyright holders right to restrict the distribution
> of copies. One of those limits is contained in 17 USC 109. We are
> discussing such a limit.
But that presumes that the copy was made legitimately, and at
the point where he knows that the software is covered by the
GPL, he is bound by its terms when downloading.
>>Alexander is not interested in distributing one legally made copy [call it
>>Copy 0], be it on a CD or an HD. He's interested in making several other
>>copies of that copy [Copy 1, Copy 2, Copy 3] and distributing those copies
>>under a different liscence he wants to impose on those copies.
Maybe, if he downloads a single copy, and then distributes that.
Just maybe. But I am with Josh - Alexander seems to be trying to
find a way to distribute GPL code without conforming to the GPL,
and, most likely, multiple copies thereof.
> He might well be interested in doing that. But the scenario we are discussing
> does not involve doing so.
I am not so sure. Alexander has actual knowledge of the GPL
and is specifically trying to get around it. If he had the
intent to do what he ultimately is going to do, i.e. sell
that copy, then he is bound by the GPL, since he knew of it.
He could only make the argument that he not be bound by its
provisions if he was ignorant of it. But any software that
he downloads knowing that it is protected by a GPL binds
him to its provisions by the act of downloading it.
In other words, he is trying to leverage free downloading into
distribution, but that is based on the assumption that the
download is licensed. But once he has knowledge of the
GPL on a given piece of software, he can no longer download
it with impunity, because downloading it accepts the GPL
license.
Jumping back to the Sun law review article he cited in
another response - the defense against the GPL is basically
predicated on lack of knowledge of the existence of the
GPL and its contents. But once he knows that it is protected
by GPL, this defense no longer applies. The implied contract
or license allowing the download now includes the GPL,
because both parties know of it.
Bruce E. Hayden
Just to nit pick a little, but on my systems, I can't
download directly to CD, rather, when it appears to be
directed to a CD, it is really being staged on my HD.
In any case, downloading directly to a CD is potentially
indicative that you know of the GPL and are trying to
get around it. And, as noted above, you might be able
to claim one copy on one CD, but the second one would
clearly be infringing (and the first is probably infringing).
Bruce E. Hayden
> On Sun, 25 Dec 2005 09:36:19 -0700, Bruce E. Hayden <bha...@ieee.org> wrote:
>
>>That gets him a copy on his hard drive. The problem is
>>making additional copies not incident to execution. If
>>he depends on 17 USC 117, he needs to ship his hard drive too.
>
>
> I hear you. 17 USC 117 is a red herring. I only mentioned it to
> address a peripheral point that you introduced.
>
> But downloading can easily be done to a removable medium.
>
>
>>>Anyone can obtain GPLd software, and provided only that they include source
>>>code, operate a free or paid distribution ftp site in which they allow
>>>GPLd software to be downloaded without restriction.
>>
>>In other words, as long as you essentially stay with the
>>GPL, you can distribute GPL software. Fine. Happens all
>>the time. The question I think though was how he could
>>distribute GPL software and not conform to the GPL.
>
>
> If I operated a site hosting GPLed software, anyone could download
> copies from me without any requirement that that they accept a license
> from me or the copyright holder before downloading.
Well, as I point out elsewhere, "anyone" is probably not
accurate. If you provide notice that it is GPL software,
and the downloader knows what that means, then I think that
a good argument can be made that his downloading agrees to
the GPL.
> It's only when a downloader indulges in some activity reserved to the
> copyright holder and not covered by an exception to the copyright holder's
> exclusive rights that they need to accept the GPL.
I don't get this. Downloading requires a license, explicit, implicit,
or whatever. I think that you and Alexander are presupposing a
bare implied license to download and look at the code. But that
would seem to require that you not have any knowledge that the
code be protected by GPL, or that you don't know what that means.
Anyone who knows that the code is GPL protected and has some
idea of what that means is most likely bound by it upon download.
Rereading the GPL, I don't see any mention of a right to download
without agreeing to the GPL, and, thus, have to assume that
the download is included in the "copy" license granted by the GPL.
> Alexander's argument is that he can download a copy from a site such
> as the one I describe and distribute that copy because it is lawfully
> made and first sale allows him to distribute lawfully made copies. He
> argues that he does not need to accept the GPL to make the copy he
> will distribute. I'm suggesting that the weak point of his argument must
> be in whether such copies are lawfully made.
I agree that this is a weak point. As I point out above
and elsewhere, I don't see any right to download GPL
protected code absent the GPL. In other words, for anyone
who knows that the GPL is applicable, agreeing to the GPL
is what licenses the initial download.
Someone who did not know about the GPL might be able to
argue that he is implicitly licensed to download the
software and do nothing else with it. But, as with all
contract formation, it is a question of knowledge. If
both parties know of the GPL and its applicability,
they are bound by it. It is only when one party doesn't
that you can realistically argue an evaluation download
license.
Isaac
> Alexander Terekhov wrote:
>
>> "Bruce E. Hayden" wrote:
>> [...]
>>
>>>Problem is that when he downloads it to his hard drive, that
>>>is one copy. And, as you point out below, that may be legal.
>>>But where is the authorization for the other copies he is
>>>making? Not from 17 USC 117 because he would have to ship
>>>his hard disk then.
>
>> HDD will cost you extra 60 or so USD. I download directly to CD.
>
> Just to nit pick a little, but on my systems, I can't
> download directly to CD, rather, when it appears to be
> directed to a CD, it is really being staged on my HD.
And even when you could direct the bytes directly to your CD
burner, you are storing the bits in buffers in your burner hardware.
Also if you are downloading over the internet, you're likely storing
parts of the files all over the place. I'm not convinced all those
temporary copies used to make the CD copy are anything to hang an
infringement action on. Yeah, I know the history behind 117.
In my opinion, the hole in Terekhov's scenario is that if your plan all
along is to distribute copies, I don't think you can say that your downloading
is within the scope of what the copyright holder authorized, so perhaps
your copy is not lawfully made.
Isaac
Bruce E. Hayden
>>>>So, absent authorization, most copying, distribution, etc.
>>>>of GPL protected software would be infringing.
>>>
>>>One can download GPLed object code without "I agree" and resell
>>>those copies under any terms. First sale.
>>
>>Nope. First Sale applies to specific copies.
>
> Sure. It applies to specific copies lawfully made in the course of
> downloading from the authorized source.
You are, of course, presuming that your copies are lawfully made.
>>Each time you write a copy of software to disk,
>>whether to install it, to cache, it, etc., it
>>constitutes making a copy. Every time you load
>>software into memory, you are making additional
>>copies. And, no, I am not making this up.
>>
>>There is a limited provision under 17 USC 117
>>for some limited copying in order to run a copy
>>of a program - if you have a legal copy in
>>the first place. But you can't keep one copy
>>and sell or transfer others.
>
> I keep nothing. If I need more, I can download more.
Knowing, of course, the GPL provisions that you
implicitly agree to when you download. Seems then
that your argument is that even though you have
agreed to the GPL provisions (by your download),
you think that you can ignore the provisions that
you don't like.
But the GPL essentially says that you need to agree
to the provisions of the license in order to make copies
of the software, and that includes the copies that you
download to your HD or CD. If, instead of intending to
conform to the GPL provisions, you intend to violate them,
then you haven't agreed to them, and the download is infringing.
>>In any case, why do you think that it is legal
>>to download GPL software without agreeing to
>>the GPL in the first place?
>
> And why do think that it is not legal?
See above.
> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
Well, let's see. A case in SDNY federal district court
trying to decide whether or not to invoke mandatory
arbitration in a license by Netscape. Anything it says
beyond that, of course, is dicta - if you get beyond that
it is unlikely that any other suit will be filed in this court.
But the judge couldn't quite figure out whether to apply
UCC II or the Restatement of Contracts. He starts using
the UCC, then shifts to the Restatement when talking about
contract formation. This is a dead giveaway that he was lost.
(Contract formation under the two is very different,
and arguably, if he had stuck with UCC II, he would have come
to the opposite conclusion - which is why he should have
explained why he ended up with Restatement contract formation).
> <quote>
>
> unlike the user of Netscape Navigator or other click-wrap or shrink-
> wrap licensees, the individual obtaining SmartDownload is not made
> aware that he is entering into a contract. SmartDownload is available
> from Netscape's web site free of charge. Before downloading the
> software, the user need not view any license agreement terms or even
> any reference to a license agreement, and need not do anything to
> manifest assent to such a license agreement other than actually
> taking possession of the product. From the user's vantage point,
> SmartDownload could be analogized to a free neighborhood newspaper,
> readily obtained from a sidewalk box or supermarket counter without
> any exchange with a seller or vender. It is there for the taking.
Of course, the difference here is that these guys were arguing
lack of knowledge of the licensing provisions, which is, obviously
not available to you, given your comments on this thread.
> Unlike most of his fellow Plaintiffs, Michael Fagan alleges that he
> obtained SmartDownload from a shareware web site established and
> managed by a third party. Defendants dispute Fagan's allegations,
> insisting that the record shows that he must have obtained
> SmartDownload from Netscape's web site in the same manner as the
> other Plaintiffs discussed above. I need not resolve this factual
> dispute. If Fagan in fact obtained SmartDownload from the Netscape
> site, his claims are equally subject to my earlier analysis. If,
> however, Fagan's version of events is accurate, his argument against
> arbitration is stronger than that of the other Plaintiffs. While
> Netscape's download page for SmartDownload contains a single brief
> and ambiguous reference to the License Agreement, with a link to the
> text of the agreement, the ZDNet site15 contains not even such a
> reference. The site visitor is invited to click on a hypertext link
> to "more information" about SmartDownload. The link leads to a
> Netscape web page, which in turn contains a link to the License
> Agreement. Assuming, for the sake of argument, that Fagan obtained
> SmartDownload from ZDNet, he was even less likely than the other
> Plaintiffs to be aware that he was entering into a contract or what
> its terms might be, and even less likely to have assented to be
> bound by the License Agreement and its arbitration clause.
> Therefore, Plaintiff Michael Fagan cannot be compelled
Not quite sure what this adds.
> I don't think that unrestricted downloads of GNU stuff shall be
> treated under law any different.
Well, you can think anything you want. It is a free country.
But so far, you sure haven't convinced me. As noted above,
the cited case revolved around lack of knowledge of the
licensing provisions, which is, arguably, not available
to you, since you argue so persuasively about GNU that
you obviously know quite a bit about their licenses.
Also, back to my point on UCC II vs. Restatement contract law.
Under UCC law, I think it likely that the Netscape license
provisions would have been included in the agreed to contract.
In commerce, there is often less notice of clauses than this.
And, thus, a need for the judge to have made the distinction
of which law he was utilizing.
Let me add that whether or not there was a contract to download
was really not an issue in that case. Rather, it was assumed.
The question was whether or not the contract (or license)
included the arbitration provision. But when you get into the
question of the license granting the right to download, this
right has to be found somewhere, or the download is infringing.
The difference here is that the copyright licensing provisions
are primary here, whereas the arbitration provisions are
peripheral, and a party could argue that he had no reason to
believe that they would be in the license. But the shoe is on
the other foot when it comes to downloading the software itself
because absent a license, downloading is most likely infringement.
So, the party downloading the software has to point to a license
to do so (which may, of course, be implied to some extent).
Bruce E. Hayden
> In my opinion, the hole in Terekhov's scenario is that if your plan all
> along is to distribute copies, I don't think you can say that your downloading
> is within the scope of what the copyright holder authorized, so perhaps
> your copy is not lawfully made.
Yeh, I agree. It has taken a bit for us to articulate
this, but I too think that this is the flaw.
Alexander Terekhov
"Bruce E. Hayden" wrote:
[...]
> was really not an issue in that case. Rather, it was assumed.
Yeah, gifts are also contracts, I know.
> The question was whether or not the contract (or license)
> included the arbitration provision.
The question was whether downloader accepted anything beyond
a gift. And the judge said "Netscape’s SmartDownload,
... allows a user to download and use the software without
taking any action that plainly manifests assent to the terms
of the associated license ... Netscape argues that the mere
act of downloading indicates assent. However, downloading is
hardly an unambiguous indication of assent. The primary
purpose of downloading is to obtain a product, not to assent
to an agreement. ... Netscape’s failure to require users of
SmartDownload to indicate assent to its license as a
precondition to downloading and using its software is fatal
to its argument that a contract has been formed."
regards,
alexander.
Alexander Terekhov
Isaac wrote:
[...]
> In my opinion, the hole in Terekhov's scenario is that if your plan all
> along is to distribute copies, I don't think you can say that your downloading
> is within the scope of what the copyright holder authorized, so perhaps
> your copy is not lawfully made.
I disagree, but ok... suppose I do comply with the GPL and provide
access to GPL'd source code to reseller(s) of copies (material
objects) that I make. What makes you think that my resellers are
also bound by the GPL?
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
> >>So "Yep" = No. There is no case law where the GPL was determined to be
> >>copyright misuse. Ok. Thanks.
>
> In other words, since you don't directly answer Josh's question,
> there is no case law directly supporting your contention.
>
> > Footnotes in Nadan's paper aside for a moment, keep an eye on Wallace
> > v. FSF. Finding of antitrust violation will establish copyright misuse
> > as well, IIUC.
>
> As Josh points out, keep dreaming. Yes, a finding of an antitrust
> violation MAY lead to a finding of copyright misuse, if the two
> are closely tied together. But as noted in the article you cited,
> it is extremely rare for courts to find copyright misuse.
http://groups.google.com/group/misc.int-property/msg/e4b4f9715bf801f5
BTW, FSF's reply to Wallace's fourth amended complaint is due today,
IIRC. I'd appreciate of someone with Pacer account can post it here,
TIA.
regards,
alexander.
Bruce Lewis
> Also if you are downloading over the internet, you're likely storing
> parts of the files all over the place. I'm not convinced all those
> temporary copies used to make the CD copy are anything to hang an
> infringement action on. Yeah, I know the history behind 117.
I agree. But sometimes I wonder: if you and I are wrong, and such
copies would infringe except for 117, then what rights do we have to
data files? You have the right to run a program thanks to 117, but what
if a computer file is not considered a program?
I know 17 USC defines programs as sets of statements or instructions,
but those latter terms aren't well defined. I doubt lawmakers were
thinking of Turing completeness (the line programmers draw between data
and programs) when they wrote the statute. Hopefully they intended that
every computer file would be considered a program. After all, "Hello
World" could be implemented as a plain text file to be "interpreted" by
"cat" on Unix or "type" on Windows.
I myself don't know the history of 117, but when I have some time I
might read up on it here:
http://digital-law-online.info/CONTU/contu1.html
Thanks, Lee Hollaar, for putting that on line.
Alexander Terekhov
"Bruce E. Hayden" wrote:
>
> Alexander Terekhov wrote:
> >>>>The only reason that you aren't infringing
> >>>>by using GPL protected software is that the GPL grants you
> >>>>the right to use the software under specific circumstances.
> >>>
> >>>
> >>>Or perhaps because the GPL is invalid on the grounds of copyright
> >>>misuse.
> >>
> >>And what is the legal basis for this statement?
> >
> > Same legal basis as for IBM's tenth defense (doctrine of copyright misuse)
> > against SCO. Why?
> >
> > www.byte.com/documents/s=8276/byt1055784622054/0616_marshall.html
> >
> > <quote>
> >
> > GPL
> >
> > "GPL has the same derivative rights concept [as UNIX],"
> > according to Sontag...
>
> And Sontag is an expert, why? Because he is a VP at SCO
> trying to enforce ATT licenses against AIX, Linux, etc.?
>
> I did read the article, and didn't really find anything there
> to support your contention.
It goes this way:
www.atnf.csiro.au/people/rgooch/linux/docs/licensing.txt
<quote>
I asked Richard to comment on several
scenarios involving plug-ins explain whether
or not they were in violation of the GPL. So
far he as only addressed one and has
effectively admitted a hole. This is the one
I asked that he's responded to:
[A] non-GPL'd plug-in writer writes a plug-in
for a non-GPL'd program. Another author
writes a GPL'd program making the first
author's plug-ins compatible with his
program. Are now the plug-in author's plug-
ins now retroactively required to be GPL'd?
His response:
No, because the plug-in was not written to
extend this program.
</quote>
Judge: Okay, but what if all these works were
written to extend a "free GPL'd program"?
Stallman: Oh, all power to them; all these
works would, of course, fall under the GPL
as "derivative works" (aka "derived works").
Judge: Sontag, do you agree with Mr. Stallman?
Sontag: Of course! GPL has the same derivative
rights concept as UNIX. And those IBM's works
were written to extend OUR program and hence,
as "derivative works", they fall under our
licensing restrictions with respect to
confidential treatment. I want up to 50$
billion in damages from IBM, your Honor.
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
[...]
> it was written by an Asst. Gen. Counsel for Sun.
"Director and Associate General Counsel, Sun Microsystems,
Inc., and Adjunct Professor, University of California
Berkeley Boalt Hall School of Law. This Article represents
the views and analysis of the author alone, and not of Sun
Microsystems, Inc."
> And Sun, of course, is one of the companies hurt worst
> by Linux and its OSI licensing model. So, this can best
> be seen as legal propaganda by that company.
I think it can be seen as the same sort of "legal propaganda"
as Nadan's other paper that was cited in
http://courses.cs.vt.edu/~cs4984/computerlaw/lewis.doc
I mean his Proposal to Recognize Component Works: How a Teddy
Bears on the Competing Ends of Copyright Law, 78 Cal.L.Rev.
> Oh,
Oh, ever heard of GNU/Solaris?
http://www.gnusolaris.org/gswiki/Download
GNUtians loudly cry "GPL violation" because RMS ruled that
SUN's CDDL (OSI approved open source license) is somehow
"incompatible" with holy GNU GPL. I'm just curious, what's
your take on that?
regards,
alexander.
Alexander Terekhov
"Bruce E. Hayden" wrote:
[...]
> lack of knowledge of the licensing provisions,
Are you sure? "Defendants [hint: not "these guys" plaintiffs] argue
that this case resembles the situation where a party has failed to
read a contract and is nevertheless bound by that contract. See,
e.g., Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102,
1109, 63 Cal.Rptr.2d 261 (Cal.Ct.App. 1997); Rowland v. PaineWebber
Inc., 4 Cal.App.4th 279, 287, 6 Cal.Rptr.2d 20 (Cal.Ct.App. 1992).
This argument misses the point. The question before me is whether
the parties have first bound themselves to the contract. If they
have unequivocally agreed to be bound, the contract is enforceable
whether or not they have read its terms."
Under your logic, plaintiffs are either IP thieves or must be
bound by the licensing provisions. Yet AOL/Netscape didn't
countersue for copyright infringement and instead agreed to quite
draconian settlement. How come?
> which is, obviously not available to you, given your comments
> on this thread.
I know that the GPL licensing provisions seriously misstate the
copyright act. I also know that according to the FSF (RMS/Moglen),
the GPL isn't a contract to begin with... so its enforcement
against no-source-code violators in court of law (outside the
GNU Republic) as not a contract is totally beyond my
understanding.
regards,
alexander.
Isaac
Give me a scenario. Tell me how you are going to comply with the
GPL. There are several methods, and I don't want to try to cover all
of them. And to allow us to skip a step, make sure that in your scenario,
you are not complicit in a plan to avoid compliance with the GPL. Also,
take into account that you cannot grant any more permission than you
yourself have received.
Isaac
Isaac
> Isaac <is...@latveria.castledoom.org> writes:
>
>> Also if you are downloading over the internet, you're likely storing
>> parts of the files all over the place. I'm not convinced all those
>> temporary copies used to make the CD copy are anything to hang an
>> infringement action on. Yeah, I know the history behind 117.
>
> I agree. But sometimes I wonder: if you and I are wrong, and such
> copies would infringe except for 117, then what rights do we have to
> data files? You have the right to run a program thanks to 117, but what
> if a computer file is not considered a program?
Again, I think 117 is a red herring. I don't believe it addresses copies
left all over the internet during downloading. This time I mentioned it
because the history of 117 suggests that copies of a program loaded into RAM
can be infringing.
But your question about data files is still interesting.
Isaac
Isaac
> Isaac wrote:
>
>
>> It's only when a downloader indulges in some activity reserved to the
>> copyright holder and not covered by an exception to the copyright holder's
>> exclusive rights that they need to accept the GPL.
>
> I don't get this. Downloading requires a license, explicit, implicit,
> or whatever. I think that you and Alexander are presupposing a
> bare implied license to download and look at the code. But that
> would seem to require that you not have any knowledge that the
> code be protected by GPL, or that you don't know what that means.
> Anyone who knows that the code is GPL protected and has some
> idea of what that means is most likely bound by it upon download.
I'm not suggesting a license based on ignorance. I'm suggesting that the
code is made available for downloading without accepting the GPL as a
precondition.
Further, I'm not advocating this position. I'm just exploring it with
the goal of identifying where Alexander goes awry.
> Rereading the GPL, I don't see any mention of a right to download
> without agreeing to the GPL, and, thus, have to assume that
> the download is included in the "copy" license granted by the GPL.
Well if the permission to download were to be found in there,
that would pretty much trash this line of reasoning.
Isaac (Still a little embarrassed by refering to Title 35 as the source
of copyright law...)
Alexander Terekhov
Isaac wrote:
>
> On Thu, 29 Dec 2005 14:49:22 +0100, Alexander Terekhov <tere...@web.de> wrote:
> >
> > Isaac wrote:
> > [...]
> >> In my opinion, the hole in Terekhov's scenario is that if your plan all
> >> along is to distribute copies, I don't think you can say that your
> >> downloading
> >> is within the scope of what the copyright holder authorized, so perhaps
> >> your copy is not lawfully made.
> >
> > I disagree, but ok... suppose I do comply with the GPL and provide
> > access to GPL'd source code to reseller(s) of copies (material
> > objects) that I make. What makes you think that my resellers are
> > also bound by the GPL?
>
> Give me a scenario. Tell me how you are going to comply with the
> GPL.
3a or 3b. And in both cases the source code won't be on the same
medium as binaries.
> There are several methods, and I don't want to try to cover all
> of them. And to allow us to skip a step, make sure that in your scenario,
> you are not complicit in a plan to avoid compliance with the GPL.
I'll be fully compliant, but end users will receive copies not from me.
> Also,
> take into account that you cannot grant any more permission than you
> yourself have received.
No no, resellers will attach some draconian "I accept" contract to
restrict end users, not to grant any more permissions. And they won't
give access to source code (because it will effectively put them out
of business). The point is that I won't impose the GPL contract on my
resellers. Since they won't make any copies or modify anything (17 USC
117 aside for a moment), they can safely ignore 3c and the entire GPL
altogether.
http://cryptome.org/softman-v-adobe.htm
regards,
alexander.
Alexander Terekhov
Isaac wrote:
[... 17 USC 117 ...]
> But your question about data files is still interesting.
http://www.copyright.gov/reports/studies/dmca/testimony/summ02.pdf
And from "A Report of the Register of Copyrights Pursuant to §104 of the
Digital Millennium Copyright Act":
"Based on the evidence presented during the course of preparing this
Report, there is a fundamental mismatch between accepted, prudent
practice among most system administrators and other users, on one
hand, and section 117 on the other. As a consequence, few adhere to
the letter of the law."
;-)
regards,
alexander.
Bruce E. Hayden
> "Bruce E. Hayden" wrote:
> [...]
>
>>Of course, the difference here is that these guys were arguing
>>lack of knowledge of the licensing provisions,
>
> Are you sure? "Defendants [hint: not "these guys" plaintiffs] argue
> that this case resembles the situation where a party has failed to
> read a contract and is nevertheless bound by that contract. See,
> e.g., Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102,
> 1109, 63 Cal.Rptr.2d 261 (Cal.Ct.App. 1997); Rowland v. PaineWebber
> Inc., 4 Cal.App.4th 279, 287, 6 Cal.Rptr.2d 20 (Cal.Ct.App. 1992).
> This argument misses the point. The question before me is whether
> the parties have first bound themselves to the contract. If they
> have unequivocally agreed to be bound, the contract is enforceable
> whether or not they have read its terms."
That was my reading of the case, and that is what is likely to
be determitive in other cases. You are somehow arguing that
even though you know the contents of the GPL, you aren't
bound by it because you didn't read it this time. They were
arguing that they hadn't EVER read the GPL. The GPL explicitly
states that if you copy it, you agree to it. Having read that,
at some point in the past, I don't see how you expect to get
away with arguing that you can copy it without agreeing to it.
> Under your logic, plaintiffs are either IP thieves or must be
> bound by the licensing provisions. Yet AOL/Netscape didn't
> countersue for copyright infringement and instead agreed to quite
> draconian settlement. How come?
Wasn't there. But in any case, I read the case (non-precedential
pretty much everywhere) as revolving around whether they could
held to the knowledge of the license.
But, as pointed out, I have serious problems with the case,
and I think most attorneys faced with your situation would
be able to fairly easily both distinguish and discredit the
decision. And since it is non-precedential, they are free to do so.
>>which is, obviously not available to you, given your comments
>>on this thread.
> I know that the GPL licensing provisions seriously misstate the
> copyright act. I also know that according to the FSF (RMS/Moglen),
> the GPL isn't a contract to begin with... so its enforcement
> against no-source-code violators in court of law (outside the
> GNU Republic) as not a contract is totally beyond my
> understanding.
Well, it sure reads like a contract to me. It is a unilateral
contract - you are granted certain rights by agreeing to certain
things. It is up to you to agree to those requirements in
order to get the benefit of the rights granted. You are somehow
suggesting that you should be able to acquire the benefits of
the contract without providing your side of the bargain.
Maybe the FSF's problem is in not understanding what a
contract is (and this does differ between the UCC II and
the Restatement of Contracts - which that case you cited
doesn't appear to understand).
As to the claimed misstatements of Copyright law in the GPL,
BFD. You are bound by contracts all the time that misstate
the law. Sure, it would be nice if they did state it right.
But that is hardly going to invalidate a contract.
Alexander Terekhov
"Bruce E. Hayden" wrote:
[...]
> and I think most attorneys faced with your situation would
> be able to fairly easily both distinguish and discredit the
> decision. And since it is non-precedential, they are free to do so.
You're misreading the case to begin with. The decision wasn't about
whether plaintiffs have read the contract or not. To quote another
case (http://cryptome.org/softman-v-adobe.htm) citing Specht v.
Netscape,
----
i) Assent
Adobe contends that the EULA limits the consumer's ability to transfer
the software after buying it. According to SoftMan, a hard copy of the
EULA agreement is not enclosed with the individual Adobe software disk.
Instead, consumers are asked to agree to its terms as part of the
installation process. (Dracup Decl. ¶ 7.)
Courts have required that assent to the formation of a contract be
manifested in some way, by words or other conduct, if the contract is
to be effective. E. Allan Farnsworth, Farnsworth on Contracts § 3.1
(2d ed. 2000). As the court noted in Specht v. Netscape Communications
Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001): "The-case law on software
licensing has not eroded the importance of assent in contract
formation. Mutual assent is the bedrock of any agreement to which the
law will give force. Defendants' position, if accepted, would so expand
the definition of assent as to render it meaningless." Id. at 596.
In the instant case, the Court finds that there is only assent on the
part of the consumer, if at all, when the consumer loads the Adobe
program and begins the installation process. It is undisputed that
SoftMan has never attempted to load the software that it sells.
Consequently, the Court finds that SoftMan is not subject to the Adobe
EULA.
----
Got it now?
regards,
alexander.