GPL Loophole or Not?
Jimmy Cerra
thing to do. Now for the question:
I've read the General Public License, and one consequence is that a
software developer must release the any source code to a project
derived from another GPLed project at the (optional) cost of
distributing it (i.e. price of shipping). Well, what if a company:
1. Made a "patcher" program that took the source to a GPLed program.
2. Patched it.
3. Made an executable from the patched source.
4. Reverted the source back to its pre-patched state.
Now the patcher wasn't distributed under a license compatible with the
GPL. In fact, it was distributed under a draconian EULA. In this
hypothetical situation, was the GPL violated? Why or why not?
Possible reasons why the GPL was NOT violated:
* The company distributed the source to the origional work. The
closed source patcher program could have been distributed seperately.
You certainly have the right under the GPL to modify the source and
not give employees access to the source if they didn't distribute the
derived work to others.
* Compiling was done at the user's site, so the derived work (the
patched source) wasn't distributed.
A possible reason why the GPL was violated:
* The __intent__ was to distribute the patched program.
I am certainly stumped!
--
Jimmy Cerra
Alexander Terekhov
Jimmy Cerra wrote:
[... patcher ...]
Portion(s) of the patcher program that contain "some" (non-"de
minimis" amount of) protected elements taken from the GPL'ed work
must be GPL'ed. If that is not the case (e.g. SUN's old converter
of Linux drivers to Solaris) then the GPL (or any other bare
copyright license) is totally irrelevant. Hth.
regards,
alexander.
Barry Margolin
jimb...@hotmail.com (Jimmy Cerra) wrote:
> First of all, I'm not going to do this and think it would be a bad
> thing to do. Now for the question:
>
> I've read the General Public License, and one consequence is that a
> software developer must release the any source code to a project
> derived from another GPLed project at the (optional) cost of
> distributing it (i.e. price of shipping). Well, what if a company:
>
> 1. Made a "patcher" program that took the source to a GPLed program.
> 2. Patched it.
> 3. Made an executable from the patched source.
> 4. Reverted the source back to its pre-patched state.
>
> Now the patcher wasn't distributed under a license compatible with the
> GPL. In fact, it was distributed under a draconian EULA. In this
> hypothetical situation, was the GPL violated? Why or why not?
I don't know whether it would hold up in court, but I believe that the
FSF would consider it a violation. I base this on the fact that it's
similar to another situation that they claimed was a violation. This
was a program that needed to be linked with the GMP library. The author
distributed this program as object files, along with instructions on how
to download the GMP library and link it. The FSF considered this
effectively equivalent to distributing the result of the linking -- the
fact that the linking takes place at the recipient's site is a minor
detail that shouldn't affect the legal status.
Your scenario replaces the instructions on how to link the program with
a patcher program, but it's still pretty much the same thing.
--
Barry Margolin, bar...@alum.mit.edu
Arlington, MA
Alexander Terekhov
Barry Margolin wrote:
[...]
> FSF would consider it a violation. I base this on the fact that it's
> similar to another situation that they claimed was a violation. This
> was a program that needed to be linked with the GMP library. The author
> distributed this program as object files, along with instructions on how
> to download the GMP library and link it. The FSF considered this
> effectively equivalent to distributing the result of the linking -- the
> fact that the linking takes place at the recipient's site is a minor
> detail that shouldn't affect the legal status.
Right, it doesn't affect the legal status. The court would consider
it a "violation" of doctrine of copyright misuse (good-bye all FSF's
copyrights) and first sale. The only reasonable conclusion would be
"Hey FSF, stuff it and pay the defendant's legal expenses". We can
call the movie "SCO reloaded" (or something like that).
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> The court would consider it a "violation" of doctrine
> of copyright misuse (good-bye all FSF's copyrights)
Care to explain why the outcome of a single court
case would have an influence on all the copyrights
held by the FSF?
--
Stefaan
--
"What is stated clearly conceives easily." -- Inspired sales droid
Alexander Terekhov
Stefaan A Eeckels wrote:
>
> On Thu, 22 Jul 2004 15:05:26 +0200
> Alexander Terekhov <tere...@web.de> wrote:
>
> > The court would consider it a "violation" of doctrine
> > of copyright misuse (good-bye all FSF's copyrights)
>
> Care to explain why the outcome of a single court
> case would have an influence on all the copyrights
> held by the FSF?
Because the penalty for copyright misuse is severe copyright
impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
all FSF's copyrights, for example.
regards,
alexander.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
I'm confused. Your first sentence suggests that you agree with me, but
then you come to the exact opposite conclusion. Are you claiming that
the GPL would not apply when the redistributor performs the linking
himself before redistributing copies?
Alexander Terekhov
Barry Margolin wrote:
[...]
> I'm confused. Your first sentence suggests that you agree with me, but
> then you come to the exact opposite conclusion. Are you claiming that
> the GPL would not apply when the redistributor performs the linking
> himself before redistributing copies?
Forget linking. Linking is irrelevant. First sale aside for a
moment, redistribution of unmodified copies is governed by the
GPL section 1 and section 3, not section 2.
regards,
alexander.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
But linking produces modified copies, not unmodified copies, so why is
it irrelevant?
And the OP's scenario involved a patch script, which obviously creates
modified copies. If the patch script were run before redistribution,
you'd clearly be redistributing modified copies. Should someone really
be able to make an end-run around the license by having the end user run
the patch script? Is it sensible that two processes that have the same
end result should be treated so differently, based only on whether the
patch script is run before or after redistribution? (Yes, I realize
that the law is not always logical, but I harbor some small hope that
judges and juries will apply common sense every now and then.)
Alexander Terekhov
Barry Margolin wrote:
>
> In article <4100071A...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
>
> > Barry Margolin wrote:
> > [...]
> > > I'm confused. Your first sentence suggests that you agree with me, but
> > > then you come to the exact opposite conclusion. Are you claiming that
> > > the GPL would not apply when the redistributor performs the linking
> > > himself before redistributing copies?
> >
> > Forget linking. Linking is irrelevant. First sale aside for a
> > moment, redistribution of unmodified copies is governed by the
> > GPL section 1 and section 3, not section 2.
>
> But linking produces modified copies, not unmodified copies, so why is
http://groups.google.com/groups?selm=40F3AA16.315F565D%40web.de
> it irrelevant?
>
> And the OP's scenario involved a patch script, which obviously creates
> modified copies.
First bring to justice http://babelfish.altavista.com/ -- we can talk
then.
regards,
alexander.
Lee Hollaar
> Is it sensible that two processes that have the same
>end result should be treated so differently, based only on whether the
>patch script is run before or after redistribution?
Sure, if a license agreement allows one but does not allow the other.
The writers of a license (especially one that is a take-it-or-leave
it one like the GPL, where no changes to the terms are allowed) are
in the best position to frame the terms of the license in the way
that gives them the protection and control that they want. A general
priciple of contract law is that disputed terms are construed against
the one writing the terms, since he was in the best position to get
the terms the way he wanted.
The drafters of the GPL, for whatever reason, decided not to impose
terms regarding the ownership or use of the licensed software.
Instead, the terms have to do with the redistribution.
Since there is no claim made that the user does not own his or her
particular copy of the licensed software (as opposed to most
proprietary software, where the license claims that the company
retains ownership), in the United States a user gets to make whatever
copies are necessary to use the program and any adaptations that
are needed. See 17 USC 117.
But Section 117 does not allow the distribution of the adaptations
without the permission of the copyright owner. And that alone
provides a good reason why there is a difference in result between
patching and redistributing, and user patching. They are treated
differently under copyright law.
The lesson is that if you want to prohibit something, you frame your
license to prohibit it, which may involve tricks like saying that
the user doesn't own the software to avoid the user rights of
Section 117.
Isaac
It would not be an end run. The GPL deliberately allows users to do
things that copyright law says that the author does not have to allow.
No one seems to dispute that users can create the derivative work
on their own platform. It also does not seem to be contested that
it's okay for users to contract for others to create derivative works
on the user's computer.
So given that, why does it make a difference whether I come to your
place and create the derivative work (and then delete all of the
sources) or if I just email you the thing charging you exactly the same
amount of money.
I don't find argument that the two processes with the same end result
must be treated the same under the law to be persuasive. It is easy
to find things in the law where the process of accomplishing something
does matter.
Isaac
Isaac
>
>
> Because the penalty for copyright misuse is severe copyright
> impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
> all FSF's copyrights, for example.
>
I've probably missed the posts where you have explained this, but
what is your description of what the law considers copyright abuse?
What I've read about the topic does not seem applicable to the FSF.
Isaac
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> Stefaan A Eeckels wrote:
> >
> > On Thu, 22 Jul 2004 15:05:26 +0200
> > Alexander Terekhov <tere...@web.de> wrote:
> >
> > > The court would consider it a "violation" of doctrine
> > > of copyright misuse (good-bye all FSF's copyrights)
> >
> > Care to explain why the outcome of a single court
> > case would have an influence on all the copyrights
> > held by the FSF?
>
> Because the penalty for copyright misuse is severe copyright
> impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
> all FSF's copyrights, for example.
You're usually so URL-happy I'm amazed you didn't
include a reference to a law text or judgement.
Seriously though, are you suggesting that when a
plaintiff would lose a copyright infringment case,
_all_ their works could be declared in the public
domain?
Lee Hollaar
>On Thu, 22 Jul 2004 19:20:09 +0200
>Alexander Terekhov <tere...@web.de> wrote:
>
>> Stefaan A Eeckels wrote:
>> >
>> > On Thu, 22 Jul 2004 15:05:26 +0200
>> > Alexander Terekhov <tere...@web.de> wrote:
>> >
>> > > The court would consider it a "violation" of doctrine
>> > > of copyright misuse (good-bye all FSF's copyrights)
>> >
>> > Care to explain why the outcome of a single court
>> > case would have an influence on all the copyrights
>> > held by the FSF?
>>
>> Because the penalty for copyright misuse is severe copyright
>> impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
>> all FSF's copyrights, for example.
>
>You're usually so URL-happy I'm amazed you didn't
>include a reference to a law text or judgement.
Here's a couple --
First, a discussion of copyright misuse from my treatise:
http://digital-law-online.info/lpdi1.0/treatise15.html#secII.K.
Then, the leading case on the subject -- Lasercomb v. Reynolds:
http://digital-law-online.info/lpdi1.0/cases/15PQ2D1846.htm
>Seriously though, are you suggesting that when a
>plaintiff would lose a copyright infringment case,
>_all_ their works could be declared in the public
>domain?
Copyright misuse is a strange thing. You don't lose your copyright,
but you lose your right to enforce it in court until you completely
purge your misuse.
So, for example, if the GPL were to be found to be a misuse of
copyright, because it improperly tries to extend the protection
beyond that intended by Congress (such as, for example, saying
that you couldn't prepare a competitive work for 99 years), then
the GPL and the copyrights underlying it could become unenforceable.
But it's uncommon that copyright misuse is found, and certainly it's
not something that happens just because you lose a copyright suit.
Alexander Terekhov
Isaac wrote:
>
> On Thu, 22 Jul 2004 19:20:09 +0200, Alexander Terekhov <tere...@web.de> wrote:
> >
> >
> > Because the penalty for copyright misuse is severe copyright
> > impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
> > all FSF's copyrights, for example.
> >
>
> I've probably missed the posts where you have explained this, but
> what is your description of what the law considers copyright abuse?
I've posted numerous times (on gnu.misc.discuss) links to the
messages of mine pointing folks (deceptively bluffed by the FSF's
hypocrites) to Hollar's treatise and the devastating legal review
of the GPL written by Christian H. Nadan (the author of "A Proposal
to Recognize Component Works: How a Teddy Bears on the Competing
Ends of Copyright Law" cited in LEWIS GALOOB TOYS, INC. v. NINTENDO
OF AMERICA, INC.).
http://groups.google.com/groups?selm=40EE745B.7A2ED0DF%40web.de
http://groups.google.com/groups?selm=40EE8CDC.977AE902%40web.de
Try also this:
http://tinyurl.com/249sg
http://tinyurl.com/3jg8z
Hth.
regards,
alexander.
Stefaan A Eeckels
hol...@faith.cs.utah.edu (Lee Hollaar) wrote:
> In article <20040722235109...@DELETEMEecc.lu> Stefaan A
> Eeckels <te...@DELETEMEecc.lu> writes:
> >On Thu, 22 Jul 2004 19:20:09 +0200
> >Alexander Terekhov <tere...@web.de> wrote:
> >>
> >> Because the penalty for copyright misuse is severe copyright
> >> impotence (Viagra resistant). FSF's GPL FAQ absurdity "covers"
> >> all FSF's copyrights, for example.
> >
> >You're usually so URL-happy I'm amazed you didn't
> >include a reference to a law text or judgement.
>
> Here's a couple --
>
> First, a discussion of copyright misuse from my treatise:
> http://digital-law-online.info/lpdi1.0/treatise15.html#secII.K.
>
> Then, the leading case on the subject -- Lasercomb v. Reynolds:
> http://digital-law-online.info/lpdi1.0/cases/15PQ2D1846.htm
Thanks for the references.
> >Seriously though, are you suggesting that when a
> >plaintiff would lose a copyright infringment case,
> >_all_ their works could be declared in the public
> >domain?
>
> Copyright misuse is a strange thing. You don't lose your copyright,
> but you lose your right to enforce it in court until you completely
> purge your misuse.
OK, that makes sense. It would still not be OK to treat
such work as public domain, because one could be sued once
the misuse has been purged. A prudent operator will refrain
from engaging in actions that illegal because the other
party did something illegal, at least in my book.
> So, for example, if the GPL were to be found to be a misuse of
> copyright, because it improperly tries to extend the protection
> beyond that intended by Congress (such as, for example, saying
> that you couldn't prepare a competitive work for 99 years), then
> the GPL and the copyrights underlying it could become unenforceable.
The GPL is careful in not asserting rights to the
code that is not a derivative work of the GPLed work.
It assumes (like I do) that a binary executable program
is a derivative work of all its composing source codes,
hence covered by the copyrights of all these works.
> But it's uncommon that copyright misuse is found, and certainly it's
> not something that happens just because you lose a copyright suit.
From perusing your references, I understand that misuse
would be conditions present in the license, i.e. part of the
understanding between the parties. Hence a FAQ document
explaining the copyright holder's interpretation of a
"derivative work", not being part of the license, would
not lead to a conclusion of copyright misuse. A case would
be judged on the merits of the license, not the interpretation
of either party of the meaning of the statutes (as it is
essentially the rôle of the court to settle these types
of differences).
Take care,
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> It assumes (like I do) that a binary executable program
> is a derivative work of all its composing source codes,
> hence covered by the copyrights of all these works.
Executable isn't a derivative work, to begin with. As for the rest,
http://groups.google.com/groups?selm=40FCE432.4F633F87%40web.de
(gpl.txt -> LGPL)
http://groups.google.com/groups?selm=40EDB041.E681930C%40web.de
(LGPL definitions and FSF's intent... conduct/impact aside for a moment)
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> Stefaan A Eeckels wrote:
> [...]
> > It assumes (like I do) that a binary executable program
> > is a derivative work of all its composing source codes,
> > hence covered by the copyrights of all these works.
>
> Executable isn't a derivative work, to begin with.
Jurisprudence please.
Alexander Terekhov
Stefaan A Eeckels wrote:
>
> On Fri, 23 Jul 2004 12:31:35 +0200
> Alexander Terekhov <tere...@web.de> wrote:
>
> > Stefaan A Eeckels wrote:
> > [...]
> > > It assumes (like I do) that a binary executable program
> > > is a derivative work of all its composing source codes,
> > > hence covered by the copyrights of all these works.
> >
> > Executable isn't a derivative work, to begin with.
>
> Jurisprudence please.
Derivative work ("Bearbeitung") must contain new protected
expressions in order to be a derivative work ("Umgestaltungen"
aside for a moment). Executable is just another form of a
corresponding source tarball (a compilation of sources and
whatever resources). It's an aggregation of copies in binary
form. Try to imagine a computer system that can run tarballs
directly. See the light?
regards,
alexander.
Stefaan A Eeckels
One could argue that by combining existing source codes with
new source codes one does something like writing a sequel,
mutatis mutandis. IIRC, merely selecting information for
inclusion in a new work can be sufficient to enjoy copyright
protection.
The problem is that analogies are never a perfect match.
Obviously, you feel that using existing source code in a
new program is merely placing them together into a kind of
archive. To me, it feels like copying paragraphs from
a text - plagiarism. A little while ago, I read a document
that had been "written" through cutting and pasting sections
and paragraphs from other documents (written mainly by yours
truly), sections culled from Sun's Java site, and some
new material. All the existing documents could be freely
downloaded. Using your approach, it would be the same as
buying a couple of pocketbooks and making a collage.
I submit that it was plain, unadulterated plagiarism
(especially because said document was devoid of any
attribution), and hence a copyright violation (in addition
to being thoroughly unprofessional). I can see little
if any difference between this (ab)use of copyrighted material
and the use of GPLed source code to create a new program.
Take care,
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> that had been "written" through cutting and pasting sections
> and paragraphs from other documents (written mainly by yours
> truly), sections culled from Sun's Java site, and some
> new material. All the existing documents could be freely
> downloaded. Using your approach, it would be the same as
> buying a couple of pocketbooks and making a collage.
> I submit that it was plain, unadulterated plagiarism
> (especially because said document was devoid of any
> attribution),
That's bad. Attribution/acknowledgment (moral right to claim
authorship) is established by the Berne Convention and is
already the mandatory requirement in some jurisdictions (e.g.
Australia... since 2000, IIRC).
> and hence a copyright violation (in addition
> to being thoroughly unprofessional).
Funny. Then explain to me why the FSF decided to proclaim
Xfree86 1.1 license that now includes so-called acknowledgment
clause
--
3. The end-user documentation included with the redistribution,
if any, must include the following acknowledgment: "This product
includes software developed by The XFree86 Project, Inc
(http://www.xfree86.org/) and its contributors", in the same
place and form as other third-party acknowledgments. Alternately,
this acknowledgment may appear in the software itself, in the
same form and location as other such third-party acknowledgments.
--
"GPL incompatible" (whatever that means)?
> I can see little
> if any difference between this (ab)use of copyrighted material
> and the use of GPLed source code to create a new program.
It's not a "new program". Its a combination of GPL'ed and non-
GPL'ed "programs" (literary works that are functional but are
still protected as literary works, not as functional artifacts)
working together. They are separate works, not derivatives of
each other. FSF concedes that things like IPC, sockets, and
CORBA, establish a boundary that the GPL doesn't cross... well,
but linking "intimacy" is completely beyond the scope of the
copyright law.
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> It's not a "new program".
Sorry to be long-winded but you have a knack for evading
the question. Could you please try to indicate what you
consider the impact of using GPLed source code in a new
development?
If one produces a program that contains new source code
as well as source code taken from GPLed work, and compiles
it into a single unit that contains binary code corresponding
to both the new source code and the GPLed source code, do
you believe that
a) The executable can be distributed without any
source code
b) The executable can be distributed with only the
source code taken from the GPLed program
c) The executable can only be distributed with the
complete source code under the GPL?
We're not arguing the relative merits, contributions,
or volume of the components, and assume that the
volume of the GPLed source code is large enough to
be outside of a "fair use" claim.
If you choose a) or b), please explain how this differs
from preparing a new document by cutting and pasting
sections and paragraphs from existing documents, with or
without attribution, and again, outside of any fair use
claims.
Thanks.
> Its a combination of GPL'ed and non-
> GPL'ed "programs" (literary works that are functional but are
> still protected as literary works, not as functional artifacts)
> working together. They are separate works, not derivatives of
> each other.
I have problems considering a single executable "separate
works" (static linking). The case I was describing is the
use of source code lifted from a GPLed work to create a new,
functionally different work. The new work contains copyrightable
material from the GPLed work, as well as material written
by the programmer using source from the GPLed work.
I am _not_ arguing that dynamic linking is the same as
static linking, neither am I arguing that the use of a
library makes a program a derivative work of that
library (or that the use of OS system calls makes a
program a derivative work of the OS).
What I _do_ argue is that independently of the availability
of the source code, the use of any source code in a new work
is subject to copyright, and not a case of first sale.
To state it unambiguously, if I take functions from a GPLed work
in source format, add them to my program source directory,
and compile the lot into an executable, I do something that
is the same as cutting and pasting sections from a document
into a new document. I also argue that extracting the compiled
versions of the sources from an existing library and producing
an executable that contains this compiled code is the same
as copying of the source.
In other words, if I publish a piece of software under the GPL,
you cannot download a copy, extract the source files you like,
and use them in a program you're writing without honouring the
license because the resulting executable is a "collage" of
works obtained under first sale and your own work. It doesn't
matter that you can physically download the GPLed work as often
as you please.
> FSF concedes that things like IPC, sockets, and
> CORBA, establish a boundary that the GPL doesn't cross... well,
> but linking "intimacy" is completely beyond the scope of the
> copyright law.
Indeed. That is why IMVHO a dynamically linked executable is
not a derivative work of the libraries it calls, whereas a
program that physically contains copyrighted materials is
(if not a derivative work) subject to the copyrights and
licenses of all its components.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
I choose b) with proper attribution/acknowledgment, of course.
http://groups.google.com/groups?selm=40276AEC.EF2241DF%40web.de
(Subject: Re: GPL warning label idea, has anyone thought of this before?)
> please explain how ...
http://groups.google.com/groups?selm=40F29FA5.EECEC5E6%40web.de
(Subject: Re: Use of GPL'd code with proprietary programs)
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> Stefaan A Eeckels wrote:
> [...]
> > If you choose a) or b),
>
> I choose b) with proper attribution/acknowledgment, of course.
If you were to use source code that is available on
a web site, but not under the GPL or any other license
stipulating terms of use, would a resulting executable
that contains binary code corresponding to both the new
source code and the non-licensed source code be
a) distributable without any source code and no
attributions
b) distributable without any source code and
proper attributions
c) not distributable
It would seem to me that the only possible answer is c),
you would _not_ be allowed to use the source in a program
you write, just as you're not allowed to use parts of a
document written by someone else in your own documents
("fair use" is pretty limited and is not merely determined
by the size of the copied material), with or without proper
attribution.
> http://groups.google.com/groups?selm=40276AEC.EF2241DF%40web.de
> (Subject: Re: GPL warning label idea, has anyone thought of this
> before?)
>
> > please explain how ...
>
> http://groups.google.com/groups?selm=40F29FA5.EECEC5E6%40web.de
> (Subject: Re: Use of GPL'd code with proprietary programs)
In this reference you say:
| If you don't create "a work based upon one or more preexisting works"
| then you have simply not created a derivative work. 17 U.S.C. §101.
It would seem fairly obvious that by taking source code from
a GPLed work you do "base your work upon one or more preexisting
works", don't you think so? How is this different from creating
a document by taking paragraphs from a preexisting document?
We're not talking about two independently written pieces of
software. It's a single piece of software that contains source
code you wrote, and source code someone else wrote.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> attributions
> b) distributable without any source code and
> proper attributions
> c) not distributable
I'll assume that a permission is given to "take it" (not merely
read or study it as some material merely presented on someone's
web site, in a book, or whatever).
Of course b). I believe that the GPL condition to make the source
code available is preempted by the first sale (as long as I don't
modify it). I just see nothing wrong with passing the GPL'ed
source code along with my proprietary/whatever stuff. Take it and
do whatever you want.
[...]
> We're not talking about two independently written pieces of
> software. It's a single piece of software that contains source
> code you wrote, and source code someone else wrote.
It not a "single piece". All I had was a functional spec for the
GPL'ed program/code. It's a back box as far as I'm concerned. The
resulting aggregation is "packaged" as a single executable, but
that doesn't change anything. It's the same (as far as copyright
is concerned) as a bunch of DLLes put together with "only small
main function" executable.
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
>
> Stefaan A Eeckels wrote:
> [...]
> > a) distributable without any source code and no
> > attributions
> > b) distributable without any source code and
> > proper attributions
> > c) not distributable
>
> I'll assume that a permission is given to "take it" (not merely
> read or study it as some material merely presented on someone's
> web site, in a book, or whatever).
Like "djbdns" on Dan Bernstein's site, for example.
> Of course b). I believe that the GPL condition to make the source
> code available is preempted by the first sale (as long as I don't
> modify it). I just see nothing wrong with passing the GPL'ed
> source code along with my proprietary/whatever stuff. Take it and
> do whatever you want.
I would feel perfectly happy using code I legally obtained
for my own needs, but using it as part of a development
I want to distribute (for free or for money) is not on.
Once it comes to incorporating someone else's source code
I believe copyright has the same implications for source
code as it has for written documents.
Note that my question was not about the GPL, but about source
code you obtained legally - like a book you obtained legally,
the only difference being you got it from a web site.
You effectively say that once you obtained one copy, no amount
of copying the files around on your own system(s), integrating
them in executables in compiled format, and copying those
executables for distribution is prohibited by the copyright
statutes, because of "first sale". At least, that's how I
understand "do whatever you want".
> [...]
> > We're not talking about two independently written pieces of
> > software. It's a single piece of software that contains source
> > code you wrote, and source code someone else wrote.
>
> It not a "single piece". All I had was a functional spec for the
> GPL'ed program/code. It's a back box as far as I'm concerned. The
> resulting aggregation is "packaged" as a single executable, but
> that doesn't change anything. It's the same (as far as copyright
> is concerned) as a bunch of DLLes put together with "only small
> main function" executable.
Again, you're evading the question. Do you assert that using
source code (functions, subroutines, classes) written by
someone else as part of your development is not a copyright
violation? Then, obviously, neither is copying text written
by someone else into documents you write.
Once you present the GPLed software as a separate program,
I agree that you can place it alongside one of your own
creations, and the license of the one doesn't influence the
license of the other. But this is not what I asked.
I specifically asked if you think that lifting source code
from a legally obtained copy, and inserting it into your
own development is different from copying a section from
a document in your own writings.
I don't believe it is. I don't believe that availability
of multiple copies gives you the possibility to do what
has always been seen as unlawfully using someone else's
work simply by claiming first sale.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> for my own needs, but using it as part of a development
But if you own that copy, you can sell it (with or without some add-on
stuff). That's what the first sale is about. Dissemination of property
(copyrighted works).
regards,
alexander.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
I believe Alexander is operating under the belief that he can apply the
first-sale doctrine because instead of making new copies when he
redistributes, he can distribute the copy he downloaded, and then
download another one legally. So each time he goes through this, he's
simply disposing of the copy that he owns rather than doing anything
that the copyright owner has control over.
Alexander Terekhov
Barry Margolin wrote:
[...]
> I believe Alexander is operating under the belief that he can apply the
> first-sale doctrine because instead of making new copies when he
> redistributes, he can distribute the copy he downloaded, and then
> download another one legally. So each time he goes through this, he's
> simply disposing of the copy that he owns rather than doing anything
> that the copyright owner has control over.
Forget downloading for a moment. The GPL does allow verbatim copying.
That's sections 1 and 3 (for object code form), not section 2. The GPL
grants the right to make copies and I own the copies I made. The only
way a court can interpret that license is to determine whether what is
being made -- A+B, for example, where A is the GPL-licensed work --
involves making a copy of A or creating a derivative work of A. If
the former, then the license is clear that there are no reciprocal
obligations. If the latter, then the license is also clear that the
author of "A+B" must disclose his source code. (these are most not
my words. Attribution: http://rosenlaw.com/html/lawrenceerosen.html)
regards,
alexander.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
> Forget downloading for a moment. The GPL does allow verbatim copying.
> That's sections 1 and 3 (for object code form), not section 2. The GPL
> grants the right to make copies and I own the copies I made.
I think that's one of the things most of us disagree with. You don't
"own" anything when you make a copy, except maybe for the disk drive you
put the copy on. For the first-sale doctrine to apply, you have to have
engaged in a transaction where a tangible object (e.g. a book, a
painting, CD, floppy disk) was transferred to you. The first-sale
doctrine applies to disposition of that object (so you can sell a book
to a used book store, or make a collage by cutting up magazines), *not*
the intellectual property. The first-sale doctrine makes a distinction
between the physical container and the information it contains.
When only bits are involved, how can you distinguish an "original" (to
which the first-sale doctrine applies) from a "copy" (to which it
doesn't)? The seems like it should make it impossible for the doctrine
to be used.
Alexander Terekhov
Barry Margolin wrote:
[...]
> I think that's one of the things most of us disagree with. You don't
> "own" anything when you make a copy, except maybe for the disk drive you
> put the copy on.
Or the CD that contains the entire distribution. If you insist, I can
refrain from media-less distribution, no problem with that.
http://groups.google.com/groups?selm=40D46A0A.76407979%40web.de
(Subject: Re: The worst that can happen to GPLed code)
regards,
alexander.
Lee Hollaar
>I think that's one of the things most of us disagree with. You don't
>"own" anything when you make a copy, except maybe for the disk drive you
>put the copy on.
In United States copyright law, you don't "put the copy" on anything.
You put a "work" on some tangible medium, giving you a "copy"
"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.
17 USC 101.
> For the first-sale doctrine to apply, you have to have
>engaged in a transaction where a tangible object (e.g. a book, a
>painting, CD, floppy disk) was transferred to you.
Nope. You only have to be "the owner of a particular copy or phonorecord
lawfully made" under copyright law. 17 USC 109. A copy can be "lawfully
made" if it is made by the copyright owner, made with the authorization
of the copyright owner, or made under one of the exceptions to the copyright
owner's exclusive rights.
> The first-sale
>doctrine applies to disposition of that object (so you can sell a book
>to a used book store, or make a collage by cutting up magazines), *not*
>the intellectual property. The first-sale doctrine makes a distinction
>between the physical container and the information it contains.
First sale looks to whether you have ownership of a material thing ("copy")
that was lawfully made. It does not look to whether you have ownership
of the copyrighted material ("work"), because the owner of a copyright
doesn't need first sale in order to transfer ownership to another.
>When only bits are involved, how can you distinguish an "original" (to
>which the first-sale doctrine applies) from a "copy" (to which it
>doesn't)? The seems like it should make it impossible for the doctrine
>to be used.
There are no "originals" in United States copyright law, only "copies."
See above: "The term 'copies' includes the material object ... in
which the work is first fixed."
The test for first sale is not whether you own an original or a copy,
but whether the copy you own was lawfully made.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
> Barry Margolin wrote:
> [...]
> > I think that's one of the things most of us disagree with. You don't
> > "own" anything when you make a copy, except maybe for the disk drive you
> > put the copy on.
>
> Or the CD that contains the entire distribution. If you insist, I can
> refrain from media-less distribution, no problem with that.
But for first-sale to be applicable, you would have to transfer the CD
that you received, and remove any copies that you installed onto your
computer.
Alexander Terekhov
Barry Margolin wrote:
[...]
> > > I think that's one of the things most of us disagree with. You don't
> > > "own" anything when you make a copy, except maybe for the disk drive you
> > > put the copy on.
> >
> > Or the CD that contains the entire distribution. If you insist, I can
> > refrain from media-less distribution, no problem with that.
>
> But for first-sale to be applicable, you would have to transfer the CD
No. I just need to prove that copies that reside on the CD were
lawfully made. Making them in the course of authorized downloading
is lawful, for example. And I don't think that the law forbids me
to store multiple works in an archive/tar (or some "executable")
on a CD (or whatever "tangible") and sell it.
regards,
alexander.
Lee Hollaar
> I just need to prove that copies that reside on the CD were
>lawfully made.
This will be a more meaningful discussion if we get the language
right, since it's important for first sale and other copyright
principles.
"Copies" are material objects. The CD is a "copy."
"Works" are the things fixed in a "copy." There can be many
"works" fixed on a CD, each being a "copy."
Alexander Terekhov
Ok. I just need to prove that all works fixed on the CD are lawfully
made copies. Right?
regards,
alexander.
Isaac
> In article <4102A7A2...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
>
>> Forget downloading for a moment. The GPL does allow verbatim copying.
>> That's sections 1 and 3 (for object code form), not section 2. The GPL
>> grants the right to make copies and I own the copies I made.
>
> I think that's one of the things most of us disagree with. You don't
> "own" anything when you make a copy, except maybe for the disk drive you
> put the copy on. For the first-sale doctrine to apply, you have to have
> engaged in a transaction where a tangible object (e.g. a book, a
> painting, CD, floppy disk) was transferred to you. The first-sale
While I don't subscribe to Terekhov's first sale theory, I don't think
there is any question that I own the any copies of software I legally
make on my own system. Further, first-sale in the US is not merely
doctrine, it is statutory. I don't see any words in the statute requiring
transfer of a tangible object. I would expect first sale to apply to
software that I paid for and received by downloading from the Internet
as long as I was willing to delete my own copy when transfering it to
another (ignoring for now the question of whether I owned rather than
licensed the software).
There may be a loophole in the literal wording of the statute, but I
don't believe a court will necessarily interpret the words the way
Terehkov suggests if it believes that doing so is contrary to the
intent of Congress.
IMO the statute (17 USC 109) does contain a buglet that could allow
distribution of fair use copies, computer backups, and other stuff,
against the will of the copyright holder. I don't believe a court
would allow the bug to be exploited. I believe instead that the
court will consider what was done with the copies when deciding
whether the copies were lawfully made. In this case I believe a
court is likely to find that a making a copy for the purpose of
distribution is an act of distribution and thus the GPL license
applies to the making and subsequent distribution of that copy.
Isaac
Lee Hollaar
> I don't see any words in the statute requiring
>transfer of a tangible object.
17 USC 109:
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. ...
17 USC 101:
"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.
> I would expect first sale to apply to
>software that I paid for and received by downloading from the Internet
>as long as I was willing to delete my own copy when transfering it to
>another (ignoring for now the question of whether I owned rather than
>licensed the software).
Maybe, maybe not. Depends on how you do the subsequent transfer. If
you transfer a CD that you have lawfully made from the download, you
fit the language of Section 109. If you send it over the network,
you likely don't.
>There may be a loophole in the literal wording of the statute, but I
>don't believe a court will necessarily interpret the words the way
>Terehkov suggests if it believes that doing so is contrary to the
>intent of Congress.
>
>IMO the statute (17 USC 109) does contain a buglet that could allow
>distribution of fair use copies, computer backups, and other stuff,
>against the will of the copyright holder. I don't believe a court
>would allow the bug to be exploited. I believe instead that the
>court will consider what was done with the copies when deciding
>whether the copies were lawfully made. In this case I believe a
>court is likely to find that a making a copy for the purpose of
>distribution is an act of distribution and thus the GPL license
>applies to the making and subsequent distribution of that copy.
The Copyright Office has noted the same problem. See pages 155-157
in its DMCA Section 104 Report:
http://www.copyright.gov/reports/studies/dmca/dmca_study.html
The report has a good discussion of the problems with first sale
and electronic distribution.
Isaac
<hol...@faith.cs.utah.edu> wrote:
> In article Isaac <is...@latveria.castledoom.org> writes:
>> I don't see any words in the statute requiring
>>transfer of a tangible object.
>
> 17 USC 109:
> 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. ...
Okay. I suppose my language was not clear.
I was questioning whether the owner of the copy is required to have
something tangible given to him by the copyright holder before he
can transfer a copy under first sale. I don't see anything in the
statute requiring that.
As you've posted elsewhere the copy must be lawfully made. It does not
necessarily have to be transfered to the owner on a physical medium. Having
the copy prepared with the authorization of the copyright holder is enough.
It's possible that some unauthorized copies may fit the bill if the
circumstances suggest that they are lawful made.
> 17 USC 101:
> "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.
Isaac
Lee Hollaar
>I was questioning whether the owner of the copy is required to have
>something tangible given to him by the copyright holder before he
>can transfer a copy under first sale. I don't see anything in the
>statute requiring that.
>
>As you've posted elsewhere the copy must be lawfully made. It does not
>necessarily have to be transfered to the owner on a physical medium. Having
>the copy prepared with the authorization of the copyright holder is enough.
>It's possible that some unauthorized copies may fit the bill if the
>circumstances suggest that they are lawful made.
That's how I understand the statutory first sale provision.
Stefaan A Eeckels
Indeed, but incorporating (part of) a work in one's
own work is not allowed by first sale. You can sell,
destroy, mutilate the copies you own, but taking
(effectively, making a copy of) a source file from
a copyrighted work and combining it with one's own
code is just not on. Hell, it's what the whole idea
of copyright is all about. It's not because I bought
a magazine that I can start copying parts of articles
in a manual I'm writing. You seem to suggest it's OK
as long as the magazine was downloaded. The simple
fact is that once you start extracting information
from a file, by necessity you have to make copies,
and these are not allowed. The only copies you can
make are those necessary to _run_ a program, and
using a source file in a development isn't part of
running the program you downloaded.
Stefaan A Eeckels
This is how I understand his argument. I can agree with
Alexander that he can dispose of a file he downloaded as
he pleases, as long as it remains on the medium on which
it was downloaded - first sale pertains to the physical
copy one owns, and doesn't allow the making of further
copies.
As the law clearly considers that loading a program in
RAM is making a copy, and clearly allows all the copies
needed to run a program, it is equally clear that any
other copy is not allowed. Hence, extracting a file from
a tarball, and copying it into a development directory
would be a violation of copyright. A further copy made
by compiling and linking for distribution purposes are
yet other violations.
Using the analogy of a book, one can tear pages out of
a book, but one cannot copy those pages. For a downloaded
tarball, this would mean that one can unpack the tarball
on the same medium one downloaded it on (the paper of a
book), but not make a copy on another medium to distribute
it - one would have to sell the copy and the medium on
which one downloaded it to maintain the analogy.
What Alexander describes is more like copying a CD and
selling the copy.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
I'm confused. Your earlier reply implied that you received the CD, not
that you put the copies on the CD after transfering them, because you
contrasted it with the example I gave. If you put it on the CD, then
the CD is "the disk drive you put the copy on" that I referred to.
Barry Margolin
Stefaan A Eeckels <te...@DELETEMEecc.lu> wrote:
> As the law clearly considers that loading a program in
> RAM is making a copy, and clearly allows all the copies
> needed to run a program, it is equally clear that any
> other copy is not allowed. Hence, extracting a file from
> a tarball, and copying it into a development directory
> would be a violation of copyright. A further copy made
> by compiling and linking for distribution purposes are
> yet other violations.
Where things get ridiculous is when Alexander combines this
interpretation of first-sale with the permissions given in the GPL. It
essentially allows all these copies on your development machine. So his
claim is that since all these copies are lawfully made, he can then
dispose of them all with no restrictions.
Alexander Terekhov
Barry Margolin wrote:
[...]
> interpretation of first-sale with the permissions given in the GPL. It
> essentially allows all these copies on your development machine. So his
> claim is that since all these copies are lawfully made, he can then
> dispose of them all with no restrictions.
Exactly. That's why the CPL (vs GPL) is a contract, not a bare license.
BTW, I've changed my mind. Even derivative works can be kept "closed
source" (you can "dispose" only the object code [with the GPL attached,
if you like] and withheld the sources) under the GPL and the first sale.
regards,
alexander.
Alexander Terekhov
Barry Margolin wrote:
>
> In article <4102C21A...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
>
> > Barry Margolin wrote:
> > [...]
> > > > > I think that's one of the things most of us disagree with. You don't
> > > > > "own" anything when you make a copy, except maybe for the disk drive you
> > > > > put the copy on.
> > > >
> > > > Or the CD that contains the entire distribution. If you insist, I can
> > > > refrain from media-less distribution, no problem with that.
> > >
> > > But for first-sale to be applicable, you would have to transfer the CD
> >
> > No. I just need to prove that copies that reside on the CD were
> > lawfully made. Making them in the course of authorized downloading
|
by me. ----------+
> > is lawful, for example. And I don't think that the law forbids me
> > to store multiple works in an archive/tar (or some "executable")
> > on a CD (or whatever "tangible") and sell it.
>
> I'm confused. Your earlier reply implied that you received the CD, not
No. I've "made" the CD.
> that you put the copies on the CD after transfering them, because you
> contrasted it with the example I gave. If you put it on the CD, then
> the CD is "the disk drive you put the copy on" that I referred to.
Right.
regards,
alexander.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> own work is not allowed by first sale.
It's not really hard to grasp it. As long as the copy itself is non-
infringing (was not "stolen"), first sale limitation on the exclusive
distribution right shall apply to it. That's the intent of the US
congress and the logic behind various cases in the EU (one was the
decision of BGH against MS in Germany... stating that very cheap OEM
Windows versions can be resold without any hardware by a party that
was not a subject to MS OEM contract restriction... see the light?).
regards,
alexander.
Stefaan A Eeckels
But in all these cases, the objective is to allow people
to dispose of their physical property, such as the cheap
Windows CDs they lawfully acquired with their PCs, not to
engage in plagiarism.
Let's consider
<http://java.sun.com/docs/books/tutorial/essential/threads/clock.html>.
It says at the bottom:
Copyright 1995-2004 Sun Microsystems, Inc. All rights reserved.
If I click on the link, I get what I believe to be a
legal copy of the article on my screen. There is no
license to accept, exactly like when I download a copy
of a GPLed work, or one of Dan Bernsteins programs.
Can I use the text on that page in my own book on Java?
Stefaan A Eeckels
Actually, the GPL has nothing to do with it as it only
applies when you want to make copies, prepare derivative
works, and distribute the work. First sale limits the
control the copyright holder has over lawful copies.
The lawful copy is the one that was downloaded, but
doesn't grant you the right to make further copies.
Obviously, once you accept the GPL (which you need to
do to make copies from the downloaded work), you cannot
retro-actively claim that because they are lawful,
the license you had to accept to make them lawful no
longer applies. That's having your cake and eating it.
If you want to invoke first sale, the only thing that
matters is that you posses a lawful copy that did
not require the signature of a contract or the acceptance
of a license to obtain.
Do you have to sign the CPL before you can lawfully
download a copy of the CPLed work?
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> download a copy of the CPLed work?
It's covered by things like "catch all" terms and conditions of using
the Eclipse web site, ftp servers, mail lists, etc. OSI's counsel
wrote a nice paper on "manifestation of assent", BTW.
regards,
alexander.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> to dispose of their physical property, such as the cheap
And I sold my CD -- physical property. Cheaply. ;-)
> Windows CDs they lawfully acquired with their PCs, not to
> engage in plagiarism.
You don't get it. I can create a million+1 copies and/or derivative
works (all kept as trade secrets without any sources, on many CDs)
of the GPL'ed stuff and no one could claim infringement. Now, if I
want to *distribute* those copies (as "physical property"), the
first sale says that I can do it without any authorization of the
copyright owner (s/he can't "condition" that act without some
binding contract).
The Munich district court ruled this month that the GPL should be
treated as a contract (hello Prof. Moglen) but, given the context
(confirmation of a totally harmless preliminary injection without
any arguments against the GPL raised by the Sitecom), they simply
briefly looked at some isolated sections of the GPL and failed to
realized that the GPL itself says that it is based purely on the
copyright law (section 5 bullshit***). The fact is that the GPL
is preempted by the copyright law, so to say. Imagine that you
buy a CD full of the GPL'ed binaries, the seller mails you that
funny "written offer", and your dog eats it the next day... do
you believe that now you can't resell your CD without that piece
of paper (without risking to go to jail)?
>
> Let's consider
> <http://java.sun.com/docs/books/tutorial/essential/threads/clock.html>.
> It says at the bottom:
> Copyright 1995-2004 Sun Microsystems, Inc. All rights reserved.
>
> If I click on the link, I get what I believe to be a
> legal copy of the article on my screen.
You don't own it, just like you don't own pictures on your TV
screen. SUN's web site is "performing", IIUC. No copy gets
distributed or authorized to be made and owned by you.
regards,
alexander.
***) "nothing else grants you permission to modify or distribute
the Program or its derivative works." It appears that the FSF
never heard of Section 109 and Section 117.
Arnoud Galactus Engelfriet
Alexander Terekhov <tere...@web.de> wrote:
>The Munich district court ruled this month that the GPL should be
>treated as a contract (hello Prof. Moglen) but, given the context
>(confirmation of a totally harmless preliminary injection without
>any arguments against the GPL raised by the Sitecom), they simply
>briefly looked at some isolated sections of the GPL and failed to
>realized that the GPL itself says that it is based purely on the
>copyright law (section 5 bullshit***).
Given that German law considers giving someone directions to
create a contract, it's not surprising that they would treat
the GPL as a contract.
Arnoud
--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Alexander Terekhov
Arnoud Galactus Engelfriet wrote:
>
> In article <4105368B...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
> >The Munich district court ruled this month that the GPL should be
> >treated as a contract (hello Prof. Moglen) but, given the context
> >(confirmation of a totally harmless preliminary injection without
> >any arguments against the GPL raised by the Sitecom), they simply
> >briefly looked at some isolated sections of the GPL and failed to
> >realized that the GPL itself says that it is based purely on the
> >copyright law (section 5 bullshit***).
>
> Given that German law considers giving someone directions to
> create a contract, it's not surprising that they would treat
> the GPL as a contract.
That ruling is quite funny, isn't it? They've simply took the
FSF's "unofficial translation" with hits like "darauf basierendes
Datenwerk" (uhmm, derivative work... Bearbeitung und Umgestaltung,
I mean), didn't bother to include the German translation of the
GPL Section 2 at all (they took only sections 1, 3, and 4) and
yet wrote that both sections *2* and 3 seem to be OK, so to say.
Given other flops and typos... too much Bier, I guess. ;-) ;-)
regards,
alexander.
Alexander Terekhov
Isaac wrote:
[...]
> While I don't subscribe to Terekhov's first sale theory, ...
I like this:
http://google.com/groups?selm=slrna7gh48.6s.isaac%40latveria.castledoom.org
<quote authors=Jeffrey Siegal, Isaac>
>What about the first sale doctrine? Indeed, if users own their own
>copies, including binary copies, of the software, than those users can
>transfer those copies without complying with the GPL's requirements as
>to source code access.
Interesting. I really hadn't thought about that and my attempts
to digest the implications on the fly are making my head hurt.
I can't resolve the problems introduced by first sale without
either making the user of GPL'd code a non owner or deciding
that users really can transfer their copies, no matter what the
GPL says.
Gotta think about this. Kinda makes my whole argument moot
if GPL users are really licensees. <g>
Isaac
</quote>
Uhmm, <q> ;-)
regards,
alexander.
Isaac
I believe my theory as expressed in that previous post to be
incorrect based on some discussion on first sale involving fair use
copies in anohter forum.
The loophole in the statues does exist. In theory, the statute
would allow distribution of backup copies of computer software as
made under 17 USC 117 as well as fair use time shifted copies of
TV broadacasts, but I believe a court would easily find that Congress
did not intend to allow those things under first sale.
Isaac
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
>
> Stefaan A Eeckels wrote:
> [...]
> > But in all these cases, the objective is to allow people
> > to dispose of their physical property, such as the cheap
>
> And I sold my CD -- physical property. Cheaply. ;-)
The fact that you own the paper doesn't mean you
can photocopy a book onto it, then sell the paper.
> > Windows CDs they lawfully acquired with their PCs, not to
> > engage in plagiarism.
>
> You don't get it. I can create a million+1 copies and/or derivative
> works (all kept as trade secrets without any sources, on many CDs)
> of the GPL'ed stuff and no one could claim infringement.
As long as it's for your own use, or no-one knows, indeed.
> Now, if I
> want to *distribute* those copies (as "physical property"), the
> first sale says that I can do it without any authorization of the
> copyright owner (s/he can't "condition" that act without some
> binding contract).
You can sell the copies of the original work. This is
what the lads from CheapBytes do, for example. And as
the original work contains the source, it happens to
comply with the GPL as well.
Why you think that after preparing a derivative work
(which you specifically cannot do, as per the copyright
statutes, unless it is done to run a program) you could
still claim first sale, escapes me. You simply have no copy
of the derivative work that you lawfully obtained.
> Imagine that you
> buy a CD full of the GPL'ed binaries, the seller mails you that
> funny "written offer", and your dog eats it the next day... do
> you believe that now you can't resell your CD without that piece
> of paper (without risking to go to jail)?
In the case of an isolated incident, probably not. In any
case, it suffices to make the buyer aware of the offer
by your original seller.
> > If I click on the link, I get what I believe to be a
> > legal copy of the article on my screen.
>
> You don't own it, just like you don't own pictures on your TV
> screen. SUN's web site is "performing", IIUC. No copy gets
> distributed or authorized to be made and owned by you.
Funny, it's sitting right there on my disk, because it
happens to appear even when the machine is off-line.
Is there a difference between a file that is downloaded
for display with a browser, and a file that is downloaded
(like qmail-1.03.tar.gz) and looked at with gtar?
The instructions given to the web server are identical,
as wget so aply illustrates. When do you "own" a copy
of a file you downloaded?
BTW, section 117 says:
| (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.
In other words, you cannot distribute the derivatives,
even though you can prepare them for your own use.
Other lawful copies can only be transferred with the
original copy. There is no first sale here, as there
was no sale, just you making a lawful copy. Lawful copies
you obtained are not lawful copies you made, legal eagle.
You clearly got your knickers in a knot. In addition,
your selective answering and constant evading of the
issues make further discussions pointless. Enjoy your
fictional world.
Alexander Terekhov
Isaac wrote:
[...]
> The loophole in the statues does exist. In theory, the statute
> would allow distribution of backup copies of computer software as
> made under 17 USC 117 as well as fair use time shifted copies of
> TV broadacasts, but I believe a court would easily find that Congress
> did not intend to allow those things under first sale.
Backups aside for a moment, fair use doesn't create "lawfully made
copies", IIUC. The copies are infringing but the "use" is fair and
doesn't create liability (as long as it's fair).
http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=320
http://google.com/groups?selm=c29b5e33.0204090425.37611f83%40posting.google.com
;-)
regards,
alexander.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> > works (all kept as trade secrets without any sources, on many CDs)
> > of the GPL'ed stuff and no one could claim infringement.
>
> As long as it's for your own use, or no-one knows, indeed.
Bullshit. I can use that million+1 copies for profit on my internal
computers and "external terminals" like cash, coke, train tickets,
and whatnot dispensers without keeping it secret. That's because
the copies are "lawfully made" and I own them. You still don't get
it. A lawfully made copy doesn't become infringing just because I
sell it. Copyright works this way only in the GNU Republic.
regards,
alexander.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
>
> | (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.
Yes, but I won't claim that I'm shielded by section 117 (I think
that it covers only limited class of derivative works anyway). I
just say that the GPL gives permission to prepare "full blown"
derivative works to anyone for free, that I own all my copies
incorporating those derivative works, and that the GPL authors
simply erred in thinking that I can't distribute them under the
first sale without having a binding contract... and that I don't
have a binding contract with the copyright owners.
regards,
alexander.
Isaac
>
> Isaac wrote:
> [...]
>> The loophole in the statues does exist. In theory, the statute
>> would allow distribution of backup copies of computer software as
>> made under 17 USC 117 as well as fair use time shifted copies of
>> TV broadacasts, but I believe a court would easily find that Congress
>> did not intend to allow those things under first sale.
>
> Backups aside for a moment, fair use doesn't create "lawfully made
> copies", IIUC. The copies are infringing but the "use" is fair and
> doesn't create liability (as long as it's fair).
That's just not true in the US even though it is what some attorneys will
say. Below is an excerpt the statute. Executive summary: fair use is
not an infringement of copyright.
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Isaac
Alexander Terekhov
Hmm. Pesky. Sec. 109 should better say something (not necessarily
prohibiting it all together) about copies made under Sec. 107, I
suppose.
regards,
alexander.
Stefaan A Eeckels
Isaac <is...@latveria.castledoom.org> wrote:
> The loophole in the statues does exist. In theory, the statute
> would allow distribution of backup copies of computer software as
> made under 17 USC 117
I don't think so, because all these copies have to be
ceded at the same time as the original copy is sold
(as per 17 USC 117 b).
> as well as fair use time shifted copies of TV broadacasts,
Probably not. Lawful != lawful, and a copy you made
doesn't have the same status as a copy you obtained
from the copyright holders or their agents. The copy
is lawful when it's made for time shifting purposes,
meaning you cannot sell it.
> but I believe a court would easily find that Congress
> did not intend to allow those things under first sale.
Indeed. It's pettyfoggery.
Lee Hollaar
>On Mon, 26 Jul 2004 18:30:42 -0500
>doesn't have the same status as a copy you obtained
>from the copyright holders or their agents. The copy
>is lawful when it's made for time shifting purposes,
>meaning you cannot sell it.
Note that the language of Section 109 is that the copy is "lawfully
made" so presumably one looks only to the lawfulness of the creation
of the copy, not its status after that.
We do know that Congress did NOT intend that there be some difference
between works made under the authorization of the copyright owner and
works that are permitted by an exception in the copyright laws. In
the Committee Report that accompanied the 1976 Act, it says:
To come within the scope of section 109(a), a copy or phonorecord
must have been "lawfully made under this title," though not
necessarily with the copyright owner's authorization. For
example, any resale of an illegally "pirated" phonorecord would
be an infringement, but the disposition of a phonorecord legally
made under the compulsory licensing provisions of section 115
would not.
>> but I believe a court would easily find that Congress
>> did not intend to allow those things under first sale.
>
>Indeed. It's pettyfoggery.
It's a valid enough argument that the Copyright Office felt that
Congress should address it through statutory changes.
Section 109 permits "the owner of a particular copy or phonorecord
lawfully made" under title 17 to distribute that copy without the
copyright owner's permission. To the extent that section 107 permits
a user to make a backup copy of a work stored on a hard drive, that
copy is lawfully made and the user owns it. Section 109, on its face,
appears to permit the user to sell or otherwise dispose of the
possession of that backup copy. The legislative history can be read
to support either view.
We conclude that a statutory change is desirable, and recommend that
Congress amend the copyright law in one of two ways.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
>
> Stefaan A Eeckels wrote:
> [...]
> > > You don't get it. I can create a million+1 copies and/or derivative
> > > works (all kept as trade secrets without any sources, on many CDs)
> > > of the GPL'ed stuff and no one could claim infringement.
> >
> > As long as it's for your own use, or no-one knows, indeed.
> ^^^^^^^^^^^^
>
> Bullshit. I can use that million+1 copies for profit on my internal
> computers and "external terminals" like cash, coke, train tickets,
> and whatnot dispensers without keeping it secret.
That's for your own use.
> That's because
> the copies are "lawfully made" and I own them.
These are the copies that, as per 17 USC 117, are made for
the purpose of running the program. They are indeed lawful,
but do not have the same status as a lawful copy you
obtained from the copyright owners or their agents, and
fall under this clause:
| (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.
Alternatively, you downloaded all the copies individually.
Still, that doesn't give you any more rights than if you
had downloaded one copy (as you cannot transfer the
adaptations without the authorisation of the copyright
owner).
Finally, you could have made the copies because you've
accepted the GPL (end of story).
> You still don't get it. A lawfully made copy doesn't
> become infringing just because I sell it.
Oh yes, for example copies made for the purpose of
running the program, or personal copies of music CDs
_do_ become infringing the moment you sell them and
keep the original copy, or sell the original and
keep the copies. It's the purpose to which they're
put that counts, not the purpose for which they were
intended.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
>
> These are the copies that, as per 17 USC 117, are made for
> the purpose of running the program.
That's the purpose of all program copies, I'd guess. Oder? ;-)
> They are indeed lawful,
> but do not have the same status as a lawful copy you
> obtained from the copyright owners or their agents, and
> fall under this clause:
Sez who? As far as I'm concerned, I've created "stand alone"
derivative works. And made a bunch of copies. And now we are
back to the normal case (without creating derivative works).
17 USC 117 is about "Limitations on exclusive rights", not
restrictions on "copies lawfully made under this title". Your
'argument' is pettyfoggery, my friend.
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> Stefaan A Eeckels wrote:
> [...]
> > BTW, section 117 says:
> >
> > | (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.
>
> Yes, but I won't claim that I'm shielded by section 117 (I think
> that it covers only limited class of derivative works anyway). I
> just say that the GPL gives permission to prepare "full blown"
> derivative works to anyone for free, that I own all my copies
> incorporating those derivative works,
Well, the GPL allows people who agree to the license
to prepare derivative works, not "anyone for free".
If you prepare "all your copies incorporating these
derivative works" you have to make copies. You can't
"buy" the derivative work, it's not available for
downloading so these have to be "real" copies, not
covered by first sale. Making the copies confirms
that you've accepted the license.
> and that the GPL authors
> simply erred in thinking that I can't distribute them under the
> first sale without having a binding contract... and that I don't
> have a binding contract with the copyright owners.
What you say sounds like "it's a lawful copy because
I accepted the license, therefore I can ignore the
license because first sale applies to all lawful copies".
Top-notch chicanery that.
It is possible that this is, as Isaac says, a "bug"
in the law, but I don't think it is going to get
you anywhere in a court of law.
Barry Margolin
hol...@faith.cs.utah.edu (Lee Hollaar) wrote:
> It's a valid enough argument that the Copyright Office felt that
> Congress should address it through statutory changes.
> Section 109 permits "the owner of a particular copy or phonorecord
> lawfully made" under title 17 to distribute that copy without the
> copyright owner's permission. To the extent that section 107 permits
> a user to make a backup copy of a work stored on a hard drive, that
> copy is lawfully made and the user owns it. Section 109, on its face,
> appears to permit the user to sell or otherwise dispose of the
> possession of that backup copy. The legislative history can be read
> to support either view.
Although I suppose you could read the statute that way, it seems like a
ridiculous interpretation. The term "backup copy" refers to the
intended, limited use of the copy; if you use it for any other purpose
(e.g. to sell it to a third party), it apparently wasn't really a backup
copy. If you can change your mind like this, this section of the law is
virtually meaningless.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> to prepare derivative works, not "anyone for free".
I "agree" to the license. Derivative works remains under the GPL,
for example. I just withheld the sources and ignore anything that
the GPL says about distribution because Sec. 109 grants me the
right to distribute (I don't need a license for that) and I've
not "agreed" to surrender that right (there's no binding contract).
Tell me how are you going to sue me for copyright infringement.
What are you going to claim? Where is infringement? There is
just none.
regards,
alexander.
Byron A Jeff
Alexander Terekhov <tere...@web.de> wrote:
-
-Stefaan A Eeckels wrote:
-[...]
-> Well, the GPL allows people who agree to the license
-> to prepare derivative works, not "anyone for free".
-
-I "agree" to the license. Derivative works remains under the GPL,
-for example. I just withheld the sources and ignore anything that
-the GPL says about distribution because Sec. 109 grants me the
-right to distribute (I don't need a license for that) and I've
-not "agreed" to surrender that right (there's no binding contract).
-
-Tell me how are you going to sue me for copyright infringement.
-What are you going to claim? Where is infringement? There is
-just none.
Read Section 109 paragraph D. To quote:
---------------------------------------------
(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.
----------------------------------------
I believe that ends this discussion. The GPL is a license. It doesn't confer
ownership to you. Therefore you don't have any of the rights you claim to
have.
That's how software works. You buy a license to use it. You don't but the
software itself. That's different from records, books, and CDs where you
purchase the actual media, and therefore can transfer that actual media.
By your argument if movies were legally downloadable, then you believe that
you have the right to make copies and sell them as long as you download each
copy that you sell. But they'll have a license to view, with limitation such
as no public performances for profit.
So what say you now?
BAJ
Alexander Terekhov
Byron A Jeff wrote:
[...]
> I believe that ends this discussion. The GPL is a license. It doesn't confer
> ownership to you. Therefore you don't have any of the rights you claim to
> have.
Nice try. But the GPL doesn't claim (quoting IBM's International License
Agreement for Non-Warranted Programs)
<quote>
The Program is owned by IBM or an IBM supplier, and is copyrighted
and licensed, not sold.
</quote>
No go read Moglens affidavit. I like
<quote>
Most software licenses begin with the exclusive rights conveyed
to authors under copyright law, and then allow others access to
the copyrighted work only under additional contractual conditions.
The GPL, on the other hand, actually /subtracts/ from the author's
usual exclusive rights under copyright law, through the granting
of unilateral permissions.
</quote>
regards,
alexander.
Byron A Jeff
Well I guess I'm in it now. Sigh.
-[...]
-> I believe that ends this discussion. The GPL is a license. It doesn't confer
-> ownership to you. Therefore you don't have any of the rights you claim to
-> have.
-
-Nice try. But the GPL doesn't claim (quoting IBM's International License
-Agreement for Non-Warranted Programs)
-
-<quote>
-
-The Program is owned by IBM or an IBM supplier, and is copyrighted
-and licensed, not sold.
-
-</quote>
It doesn't have to. Unless the copyright is explicitly assigned to another
party, it is retained by the author. and GPL is Gnu Public LICENSE. So
GPL software is also copyrighted and licensed.
Check out the first paragraph in section 0 of the GPL [emphesis mine]:
------------------
0. This LICENSE applies to any program or other work which contains a notice
placed by the COPYRIGHT HOLDER saying it may be distributed under the terms
of this General Public License.
------------------
So you were saying about not claiming?
-
-No go read Moglens affidavit. I like
-
-<quote>
-
-Most software licenses begin with the exclusive rights conveyed
-to authors under copyright law, and then allow others access to
-the copyrighted work only under additional contractual conditions.
-The GPL, on the other hand, actually /subtracts/ from the author's
-usual exclusive rights under copyright law, through the granting
-of unilateral permissions.
-
-</quote>
So? The copyright owner can choose to exercise or extend whatever rights they
like. However what you have proposed is a right that has not been given to
you by neither license nor copyright law. And you don't own it. So 109d says
that you don't have the rights from sections a-c that you claim to have.
You only have the right to copy and distributed under the terms of the GPL.
If you choose not to accept the license then you have no right whatsoever
to distribute, because you are not the owner. That's what 109d states.
And no matter what rights the copyright owner chooses to subtract for him or
herself, they haven't extended that priviledge of rights subtraction to YOU!
Also those authors rights are only suspended for that license to you. The
fact is that the copyright owner is welcome to relicense in any way shape or
form except that they cannot take back any recinded rights in the specific
license to you.
So we're back to square one. Refute 109d or drop this clearly moot discussion.
I just get sick and tired or reading about folks who want to circumvent
the intent of the GPL for the purpose of closing source and exploitings other's
work. We have all these legal discussions simply because the intent of the GPL
is clear: If you use GPL work and redistribute it, you must extend the same
rights to those you distribute it to as you received when you got it. It's
the ultimate application of the golden rule. Yet in this newsgroup and in
gnu.discuss.misc every day some shyster comes on the scene trying to find a
loophole. If you don't like the GPL, then don't use GPL code and don't license
your code under the GPL. But stop trying to circumvent the intent. Please.
BAJ
Alexander Terekhov
Byron A Jeff wrote:
>
> In article <4107B16F...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
> -
> -Byron A Jeff wrote:
>
> Well I guess I'm in it now. Sigh.
You are literally the very first person I've met in my entire life
who claims that all the copies of the GPL'ed works (including
copies made by me) is the property of the GNU Republic, so to say.
>
> -[...]
> -> I believe that ends this discussion. The GPL is a license. It doesn't confer
> -> ownership to you. Therefore you don't have any of the rights you claim to
> -> have.
> -
> -Nice try. But the GPL doesn't claim (quoting IBM's International License
> -Agreement for Non-Warranted Programs)
> -
> -<quote>
> -
> -The Program is owned by IBM or an IBM supplier, and is copyrighted
> -and licensed, not sold.
> -
> -</quote>
>
> It doesn't have to. Unless the copyright is explicitly assigned to another
I see. It's sooo hard to grasp the difference between ownership
of a copyright in a work and ownership of a copy. Anyway,
http://groups.google.com/groups?selm=40CE2C9B.A4715581%40web.de
(Subject: Re: The worst that can happen to GPLed code)
and make a visit to D. J. Bernstein. ;-)
http://groups.google.com/groups?selm=40D7E7C0.64F74067%40web.de
(Subject: Re: The worst that can happen to GPLed code)
> party, it is retained by the author. and GPL is Gnu Public LICENSE. So
> GPL software is also copyrighted and licensed.
>
> Check out the first paragraph in section 0 of the GPL [emphesis mine]:
>
> ------------------
>
> 0. This LICENSE applies to any program or other work which contains a notice
> placed by the COPYRIGHT HOLDER saying it may be distributed under the terms
> of this General Public License.
>
> ------------------
>
> So you were saying about not claiming?
I'm saying that when it comes to copyright Stallman is a moron.
regards,
alexander.
P.S. And you're a vegetable, so to say.
Thomas Frayne
> On Thu, 22 Jul 2004 17:04:50 -0400, Barry Margolin <bar...@alum.mit.edu> wrote:
> > In article <4100071A...@web.de>,
> > Alexander Terekhov <tere...@web.de> wrote:
> >
> >> Barry Margolin wrote:
> >> [...]
> >> > I'm confused. Your first sentence suggests that you agree with me, but
> >> > then you come to the exact opposite conclusion. Are you claiming that
> >> > the GPL would not apply when the redistributor performs the linking
> >> > himself before redistributing copies?
> >>
...
> > And the OP's scenario involved a patch script, which obviously creates
> > modified copies. If the patch script were run before redistribution,
> > you'd clearly be redistributing modified copies. Should someone really
> > be able to make an end-run around the license by having the end user run
> > the patch script?
...
>
> It would not be an end run. The GPL deliberately allows users to do
> things that copyright law says that the author does not have to allow.
> No one seems to dispute that users can create the derivative work
> on their own platform. It also does not seem to be contested that
> it's okay for users to contract for others to create derivative works
> on the user's computer.
>
> So given that, why does it make a difference whether I come to your
> place and create the derivative work (and then delete all of the
> sources) or if I just email you the thing charging you exactly the same
> amount of money.
>
> I don't find argument that the two processes with the same end result
> must be treated the same under the law to be persuasive. It is easy
> to find things in the law where the process of accomplishing something
> does matter.
>
> Isaac
The problem is that copyright case law considers the object program
and the source program to be two instances of the same work, so
distributing the object code is equivalent, as far as copyright law
goes, to distributing the source code, and, if you have no license to
the source code (because it is a derivative of or a collection
containing GPL'd copyrights that you are not abiding), then you have
no right to distribute the object code either.
The patcher program might very well be legal without being GPL'd. But
the patched program infringes copyrights.
Alexander Terekhov
Thomas Frayne wrote:
[...]
> The patcher program might very well be legal without being GPL'd. But
> the patched program infringes copyrights.
How? A patched program is a copy "lawfully made" by the recipient
of the patcher program (the GPL unilaterally grants him all the
rights). Go back to your GNU Republic, Frayne.
regards,
alexander.
Lee Hollaar
> But the patched program infringes copyrights.
Are you saying that regardless of who runs the program to produce
the patched program? I see how it is an infringement to produce
the patched program and then distribute it, because that would
infringe the distribution right and there is no permission from
the copyright owner to do that without complying with the GPL.
But what about if the patched program is created by the user by
running the patching program against a copy of the GPLed software
that was lawfully acquired, such as by downloading? Seems like
that is permissible under 17 USC 117 as long as the patched program
is used but not redistributed.
Alexander Terekhov
Lee Hollaar wrote:
>
> In article <31b9c6ec.04072...@posting.google.com> To...@sjpc.org (Thomas Frayne) writes:
> > But the patched program infringes copyrights.
>
> Are you saying that regardless of who runs the program to produce
> the patched program? I see how it is an infringement to produce
> the patched program and then distribute it, because that would
> infringe the distribution right and there is no permission from
> the copyright owner to do that without complying with the GPL.
Why one would need any permission to distribute "in addition" to
the right under 17 USC 109?
>
> But what about if the patched program is created by the user by
> running the patching program against a copy of the GPLed software
> that was lawfully acquired, such as by downloading? Seems like
> that is permissible under 17 USC 117 as long as the patched program
> is used but not redistributed.
Even if it doesn't full under 17 USC 117, the GPL itself makes
it permissible by granting right to prepare derivative works and
make copies. The resulting derivative work should remain under
the GPL but the obligation to disclose it (let's assume that it
is enforceable a la the CPL) comes into play only when you
distribute copies.
http://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic
regards,
alexander.
Lee Hollaar
>
>Lee Hollaar wrote:
>>
>> In article <31b9c6ec.04072...@posting.google.com> To...@sjpc.org (Thomas Frayne) writes:
>> > But the patched program infringes copyrights.
>>
>> Are you saying that regardless of who runs the program to produce
>> the patched program? I see how it is an infringement to produce
>> the patched program and then distribute it, because that would
>> infringe the distribution right and there is no permission from
>> the copyright owner to do that without complying with the GPL.
>
>Why one would need any permission to distribute "in addition" to
>the right under 17 USC 109?
Because Section 117 has a specific limitation against the transfer
of any adaptations made under the authority of 117, and that could
be considered as trumping the general first sale provision of Section
109. Note that 109 only provides an exception to the exclusive
right of distribution in 106(3), and not the right to control the
distribution adaptations under 117. And copyright infringement
results when any of the rights of the copyright owner under
Sections 106 though 121 are violated. See Section 501.
Alexander Terekhov
Lee Hollaar wrote:
[...]
> >Why one would need any permission to distribute "in addition" to
> >the right under 17 USC 109?
>
> Because Section 117 has a specific limitation against the transfer
> of any adaptations made under the authority of 117, and that could
> be considered as trumping the general first sale provision of Section
> 109. Note that 109 only provides an exception to the exclusive
> right of distribution in 106(3), and not the right to control the
> distribution adaptations under 117.
That's clearly a stretch. 117 is about "another copy", not a
million+1 copies that I can create under the GPL. Ok, one copy
among them is an "adaptation" (and doesn't fall under 109), but
how about million of others? I can prove that I have only one
"original" copy. ;-)
regards,
alexander.
Alexander Terekhov
Lee Hollaar wrote: ...
I've found your recent paper.
http://www.iipi.org/activities/forums/softwareconference/Hollaar%20Paper.pdf
(The Role of Intellectual Property in Open Source Software)
Interesting reading. Two things.
A) "The GPL explicitly recognizes this need for both strong copyright
and contract laws to achieve its goals". Please enjoy
http://www.groklaw.net/article.php?story=20031214210634851
(The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling)
;-)
B) Apropos derivative works and linking. The ESR's Licensing-
HOWTO has a nice analogy/argument:
http://www.catb.org/~esr/Licensing-HOWTO.html
<quote>
consider the case of two scientific papers which reference each
other. The fact that paper B calls paper A (references it for
support) does not make B a derivative work of A. This remains
true whether B and A are published together in a symposium
(analogous to static linkage) or separately (analogous to
dynamic linkage). Computer programs are defined in 17 USC as
literary works
</quote>
regards,
alexander.
Byron A Jeff
-> In article <4107B16F...@web.de>,->
-> Well I guess I'm in it now. Sigh.
-
-You are literally the very first person I've met in my entire life
-who claims that all the copies of the GPL'ed works (including
-copies made by me) is the property of the GNU Republic, so to say.
Really? That's what copyright is all about. If the copyright owner cannot
dictate how a work is used, then they don't own it right? Copyright law
specifically defines what you can and cannot do with a copyrighted work.
-
->
-> -[...]
-> -> I believe that ends this discussion. The GPL is a license. It doesn't confer
-> -> ownership to you. Therefore you don't have any of the rights you claim to
-> -> have.
-> -
-> -Nice try. But the GPL doesn't claim (quoting IBM's International License
-> -Agreement for Non-Warranted Programs)
-> -
-> -<quote>
-> -
-> -The Program is owned by IBM or an IBM supplier, and is copyrighted
-> -and licensed, not sold.
-> -
-> -</quote>
->
-> It doesn't have to. Unless the copyright is explicitly assigned to another
-
-I see. It's sooo hard to grasp the difference between ownership
-of a copyright in a work and ownership of a copy. Anyway,
It's not ownership. You have a copy and a license to use it under certain
conditions. You may have possession of a copy, but that doesn't mean that
you own it.
-
-http://groups.google.com/groups?selm=40CE2C9B.A4715581%40web.de
-(Subject: Re: The worst that can happen to GPLed code)
-
-and make a visit to D. J. Bernstein. ;-)
D.J. defined his own rights for that work. It doesn't negate my point.
Note that on his distributors page he does two things:
1) He waives some of his rights.
2) He places restrictions on the distribution of modified copies.
Now explain exactly how in the hell can he do that if the receiver "owns"
the code? It's like me selling you a car, then telling you when, how, and
how many people can be in the car when you drive it. That's crazy if you
own the car. However if you're leasing, renting, borrowing said car, such
restrictions make sense, because you don't own it.
Software and all copies of the coprighted work have rights that are retained
by the author. That author then licenses users as to what they can and cannot
do.
I'm still trying to find this ownership that you so desparately want.
-
-http://groups.google.com/groups?selm=40D7E7C0.64F74067%40web.de
-(Subject: Re: The worst that can happen to GPLed code)
-
-> party, it is retained by the author. and GPL is Gnu Public LICENSE. So
-> GPL software is also copyrighted and licensed.
->
-> Check out the first paragraph in section 0 of the GPL [emphesis mine]:
->
-> ------------------
->
-> 0. This LICENSE applies to any program or other work which contains a notice
-> placed by the COPYRIGHT HOLDER saying it may be distributed under the terms
-> of this General Public License.
->
-> ------------------
->
-> So you were saying about not claiming?
-
-I'm saying that when it comes to copyright Stallman is a moron.
Unconventional? Probably. Moron. Well this moron has written a license that
folks like you have been trying to poke holes into for 20 years. 20! Not one
valid argument has been validated.
BTW at least one court agrees with the moron:
http://www.theinquirer.net/?article=17409
"German court says GPL valid."
BAJ
Byron A Jeff
Alexander Terekhov <tere...@web.de> wrote:
>
>http://www.groklaw.net/article.php?story=20031214210634851
>(The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling)
Glad you brought this up. Back to our discussion about ownership. This
article outlines my point. To quote:
-----------------------------------------------------
Most software today is licensed to you, actually. Here are some examples of
such software licenses, or just read your Microsoft EULA. The GPL is no
freak of nature in that respect. The license says, in effect, I still own my
own stuff, but you can use it under the following restrictions and
conditions. When you buy Microsoft Windows, you don't own it. You get to use
it under a license. The only part people have trouble getting their heads
around is the fact that the GPL grants you additional rights, whereas most
EULAs further restrict rights beyond the restrictions of copyright law,
which is in essence "the power to exclude" in the first place, as the GPL
FAQ explains it.
-------------------------------------------------------------------
Though the GPL does grant additional rights, it be definition doesn't
obviate ownership. In fact that's the linchpin of how it works: the license
enforces conditions on the licensor specifically because the licensor doesn't
own the work, and doesn't have total ownership of any deriviatives even if
they contribute code to the GPL work.
BAJ
Isaac
> In article <4107C898...@web.de>,
> Alexander Terekhov <tere...@web.de> wrote:
> -
> -who claims that all the copies of the GPL'ed works (including
> -copies made by me) is the property of the GNU Republic, so to say.
>
> Really? That's what copyright is all about. If the copyright owner cannot
> dictate how a work is used, then they don't own it right? Copyright law
> specifically defines what you can and cannot do with a copyrighted work.
Not exactly. Copyright law defines a set of rights that are exclusive
to copyright holders. That list of rights simply does not include
everything. Additionally, in the US at least, the statutory list of things
exclusive to copyright holders is followed by a significantly larger
set of statutes pointing out the exceptions to the copyright holders
exclusive rights.
For example if I simply read a copyrighted book in the store
without paying for it, I have not infringed on any of the copyright
holders rights under copyright law.
Many people do not believe that even shrink wrapped licenses
prevent buyers from owning copies, but somehow you are 100% sure
that when you purchase GPL code on a disk without doing anything
that could conceivably be viewed as assent to a contract *before
or after purchase* that you do not own that copy. Tell me how
that works. According to the license, even running the software
is outside the scope of the license.
How about when you buy a book at the bookstore? Do you own that
copy?
Isaac
Alexander Terekhov
Byron A Jeff wrote:
[...]
> conditions. When you buy Microsoft Windows, you don't own it.
MS was laughed out of BGH appeal in Germany with this argument.
www.theregister.co.uk/2000/09/04/german_court_ruling_triggers
(German court ruling triggers 30% price cuts on Windows)
As for US,
<quote source=http://tinyurl.com/3c2n2>
(1) First Sale Doctrine
The “first sale” doctrine was first analyzed by the United States
Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).
[...]
One significant effect of § 109(a) is to limit the exclusive right
to distribute copies to their first voluntary disposition, and thus
negate copyright owner control over further or “downstream” transfer
to a third party. Quality King Distrib. v. L’Anza Research Int’l,
Inc., 523 U.S. 135, 142-44 (1998).
[...]
Adobe argues that the first sale doctrine does not apply because
Adobe does not sell or authorize any sale of its software. Adobe
characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.
[...]
(2) Sale v. License
(a) Historical Background
Historically, the purpose of “licensing” computer program copy use
was to employ contract terms to augment trade secret protection in
order to protect against unauthorized copying at a time when, first,
the existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use
“licensing” continued after federal courts interpreted the
Copyright Act to provide substantial protection for computer
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software
industry and concluded that subsequent changes to the Copyright Act
had rendered the need to characterize the transaction as a license
“largely anachronistic.” 939 F.2d 91, 96 n.7 (3d Cir. 1991).10
(b) Adobe Sells its Software
A number of courts have held that the sale of software is the sale
of a good within the meaning of Uniform Commercial Code. Advent
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp.,
929 F.2d 1147, 1150 (6th Cir. 1991).
[...]
Other courts have reached the same conclusion: software is sold
and not licensed.
</quote>
Now go visit <http://www.gnu.org/philosophy/selling.html>.
regards,
alexander.
Alexander Terekhov
Byron A Jeff wrote:
[...]
> dictate how a work is used, then they don't own it right?
The thing is called COPYright, not USEright, stupid. Hey, I know that
in the GNU Republic the GNU law says that since book readers and movie
viewers do create copies by fixing works in neurons and synapses in
their brain (retina aside for a moment), once you've read a book or
watched a movie, your brain (material object) doesn't belong to you
any more and is the property of the GNU Republic. That's not how the
copyright works in the rest of the world, Byron.
regards,
alexander.
Alexander Terekhov
Byron A Jeff wrote:
[...]
Take this:
http://groups.google.com/groups?selm=41055C8A.3D4940B7%40web.de
I also like this (inaccuracies and misundersatanding of first
sale aside for a moment):
http://www.groklaw.net/article.php?story=20040725150736471
(The German GPL Order - Translated)
<quote>
According to the jurisdiction of the Federal Court of Justice, an
object-related, and not only liability-related, subdivision of the
right of redistribution (par. 17 section 1 UrhG) is only possible
if there are usual, technically and economically independent and
thus clearly delineateable forms of usage, due to the ensuing
potential limitation of the fitness for sale of the copyrighted
objects (BGH, GRUR 2001, 153-155 OEM version.)
[Here it gets tough. I believe the "OEM version" decision of the
Bundesgerichtshof was in a case against Microsoft that looked like
this: Alice sold Bob cheap so-called "OEM" versions of software
with the provision that the software may only be resold together
with hardware. Bob sold that software together with hardware to
reseller Charly. Charly, in turn, kept the hardware, but resold
the OEM software to end-user Dorothy. Alice sued Charly for
copyright infringement, claiming that the provision only to resell
the OEM software with hardware was somehow attached to the
OEM software license itself, and Charly did not validly
redistribute the software. The decision was that Charly did not
infringe on Alice's copyright, because the OEM software was not
sufficiently different in function or otherwise from the fully-
priced software, Alice voluntarily sold some restribution rights
to Bob, who sold them to Charly, and Charly did not have
contractual relationships with Alice (only Bob did).
The underlying idea is that if you as the copyright holder decide
to sell some of your rights (e.g. a non-exclusive right to use),
you are not at liberty to limit the right that you sell in a way
that would interfere with further resale of the right. You may
have contracts with your sales partners, and you can sue them for
breach of contract, but you cannot sue a third party that got a
valid license from your sales partner for copyright infringement. ]
</quote>
The GPL (FSF's interpretation) is preempted and barred by the
doctrine of copyright misuse and the doctrine of first sale.
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
> Lee Hollaar wrote:
> [...]
> > >Why one would need any permission to distribute "in addition" to
> > >the right under 17 USC 109?
> >
> > Because Section 117 has a specific limitation against the transfer
> > of any adaptations made under the authority of 117, and that could
> > be considered as trumping the general first sale provision of Section
> > 109. Note that 109 only provides an exception to the exclusive
> > right of distribution in 106(3), and not the right to control the
> > distribution adaptations under 117.
>
> That's clearly a stretch. 117 is about "another copy", not a
> million+1 copies that I can create under the GPL.
But wouldn't you agree it is the acceptance to be bound
by the GPLs conditions that makes these copies legal?
Turning around afterwards and saying that you do not
have to respects the GPL's conditions because you now
"own" those "legal" copies might be lawful, but it sure
is thoroughly amoral.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> by the GPLs conditions that makes these copies legal?
No. The GPL is not a contract.
> Turning around afterwards and saying that you do not
> have to respects the GPL's conditions because you now
> "own" those "legal" copies might be lawful, but it sure
> is thoroughly amoral.
Switch to the CPL/EPL/OSL (contracts) and I'll behave "morally".
If you'll come to me asking the GPL'ed sources for GPL'ed object
code I distribute under Sec. 109, my reply will be "trade secret,
piss off vegetable".
regards,
alexander.
Stefaan A Eeckels
Alexander Terekhov <tere...@web.de> wrote:
>
> Stefaan A Eeckels wrote:
> [...]
> > But wouldn't you agree it is the acceptance to be bound
> > by the GPLs conditions that makes these copies legal?
>
> No. The GPL is not a contract.
But in the post I replied to you stated:
> That's clearly a stretch. 117 is about "another copy", not a
> million+1 copies that I can create under the GPL.
You create them "under the GPL", but it's not
the GPL that makes them legal? Funny kind of
reasoning, that.
> Switch to the CPL/EPL/OSL (contracts) and I'll behave "morally".
> If you'll come to me asking the GPL'ed sources for GPL'ed object
> code I distribute under Sec. 109, my reply will be "trade secret,
> piss off vegetable".
Usually, "morals" are those rules we live by without
being bound by contracts.
Alexander Terekhov
Stefaan A Eeckels wrote:
[...]
> the GPL that makes them legal?
The GPL makes them legal. The GPL is great.
> Funny kind of reasoning, that.
I love funny stuff.
http://www.terekhov.de/GPL'ed-Sources.txt
regards,
alexander.
Byron A Jeff
Isaac <is...@latveria.castledoom.org> wrote:
-On 28 Jul 2004 20:50:59 -0400, Byron A Jeff <by...@cc.gatech.edu> wrote:
-> In article <4107C898...@web.de>,
-> Alexander Terekhov <tere...@web.de> wrote:
-> -
-> -You are literally the very first person I've met in my entire life
-> -copies made by me) is the property of the GNU Republic, so to say.
->
-> Really? That's what copyright is all about. If the copyright owner cannot
-> dictate how a work is used, then they don't own it right? Copyright law
-> specifically defines what you can and cannot do with a copyrighted work.
-
-Not exactly. Copyright law defines a set of rights that are exclusive
-to copyright holders. That list of rights simply does not include
-everything. Additionally, in the US at least, the statutory list of things
-exclusive to copyright holders is followed by a significantly larger
-set of statutes pointing out the exceptions to the copyright holders
-exclusive rights.
OK. That makes sense.
-
-For example if I simply read a copyrighted book in the store
-without paying for it, I have not infringed on any of the copyright
-holders rights under copyright law.
-
I've done that on quite a few occasions.
-Many people do not believe that even shrink wrapped licenses
-prevent buyers from owning copies, but somehow you are 100% sure
-that when you purchase GPL code on a disk without doing anything
-that could conceivably be viewed as assent to a contract *before
-or after purchase* that you do not own that copy.
The GPL isn't a contract. No assent is required. In the License vs. Contracts
article:
http://www.informit.com/articles/article.asp?p=212176&seqNum=3
it points out that licenses give permissions not otherwise allowed while
contracts are bound promises by both parties.
The argument on the table seems to be that a contract (purchasing a disk with
GPL software on it) superceedes the license, therefore giving the receiving
party additional rights that they would not otherwise have solely under the
license.
But to use your example, even buying a book doesn't give me all of the rights
that the copyright holder has.
- Tell me how
-that works. According to the license, even running the software
-is outside the scope of the license.
Here's the actual line:
"The act of running the Program is not restricted,"
So in fact the license gives permission to run the software, so I guess it's
actually within scope.
-
-How about when you buy a book at the bookstore? Do you own that copy?
Of the book? Yes. Of the copyrighted content? I don't think so. My argument is
that if you owned the content, then you'd have the rights that the
copyright owner has. You can't make additional copies of it and sell it can
you? Only the copyright owner has the right to do that, unless there is a
license given by that copyright owner.
I've always thought of it as: you buy the media, but you don't own the
content.
Alexander believes in the First Sale doctrine. But I don't think it applies
to GPL code unless you actually buy it, which constitutes a contractual
obligation. And then you still only have the right to sell THAT COPY that you
bought. Everything else in terms of distribution is covered under license
including free downloads. You didn't buy anything, there's no contract, so
you're subject to the license.
BAJ
Alexander Terekhov
Byron A Jeff wrote:
[...]
> to GPL code unless you actually buy it, which constitutes a contractual
> obligation. And then you still only have the right to sell THAT COPY that you
> bought. Everything else in terms of distribution is covered under license
> including free downloads. You didn't buy anything, there's no contract, so
> you're subject to the license.
Bzzt. GNU School of Law (aka GNU Church) Medalist. Class of Prof. Moglen.
regards,
alexander.
Lee Hollaar
>The GPL isn't a contract. No assent is required. In the License vs. Contracts
>article:
>
>http://www.informit.com/articles/article.asp?p=212176&seqNum=3
A pretty bogus argument. Sort of like saying that a lease isn't a
contract because we call it a lease.
The GPL certainly isn't even close to the other examples of a license
that the person mentions: fishing licenses, drivers licenses. Those
are things issued by the government and to act without them is a
criminal offense.
One can agree to the terms of a contract by action, such as distributing
software in accordance with the GPL. If one doesn't do that, then it
is a copyright infringement unless there is some other reason why the
act is permitted.
>Here's the actual line:
>
>"The act of running the Program is not restricted,"
>
>So in fact the license gives permission to run the software, so I guess it's
>actually within scope.
Actually, it just says that the license doesn't try to impose any
restriction on running the program. It doesn't give any permission
to run the program, because none is needed. Instead, since you are
the owner of your copy of the program -- nothing says that you aren't,
as opposed to most proprietary software licenses -- Section 117 lets
you make any copies and adaptations necessary to run the program.
(If you could run the program without making copies and adaptations,
no permission would be necessary since the copyright owner's exclusive
rights don't include running programs any more than reading books.)
>Alexander believes in the First Sale doctrine. But I don't think it applies
>to GPL code unless you actually buy it, which constitutes a contractual
>obligation.
In the United States, "first sale" is just the shorthand for Section
109 of the Copyright Act and the laws interpreting it. And there is
nothing in that provision that requires that you have to buy the copy.
You just need to be "the owner of a particular copy or phonorecord
lawfully made" under copyright law. Nor does any "contractual
obligation" play a part in whether Section 109 applies.
It's not that one has to "believe in the first sale doctrine." In the
United States, its a statute, whether you believe in it or not. And
it applies when the conditions in the statute are met, regardless of
what the GPL or anybody else says.
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
Now you just seem to be making up garbage. What claims by the FSF are
you referring to in this paragraph?
--
Barry Margolin, bar...@alum.mit.edu
Arlington, MA
Barry Margolin
Alexander Terekhov <tere...@web.de> wrote:
> Stefaan A Eeckels wrote:
> [...]
> > You create them "under the GPL", but it's not
> > the GPL that makes them legal?
>
> The GPL makes them legal. The GPL is great.
You seem to be contradicting yourself. The GPL makes them legal as long
as you obey it. But then you say that you can disobey it because the
GPL made them legal and the first-sale doctrine gives you more rights.
You can't have it both ways.
Isaac
Nobody has said that it does. Buying a patented framastat does not give
me all of the rights of the patent holder, but the purchased item is still
my framastat.
We recognize the difference between owning a book and owning the copyright
to the book.
>
> - Tell me how
> -that works. According to the license, even running the software
> -is outside the scope of the license.
>
> Here's the actual line:
>
> "The act of running the Program is not restricted,"
Not restricted compared to what?
>
> So in fact the license gives permission to run the software, so I guess it's
> actually within scope.
>
> -
> -How about when you buy a book at the bookstore? Do you own that copy?
>
> Of the book? Yes. Of the copyrighted content? I don't think so. My argument is
What in the world constitutes the copy of a book that you own? I think
your trying to dissect inseparable. When 35 USC 117 talks about owners
of copies, is it your position that the section is talking about
the right of the copyright holder to make copies? That seems exceedingly
silly given that 35 USC 117 is an exception to the copyright holder's
exclusive rights. Is 35 USC 117 talking about preventing the copyright
holder from suing himself.
A similar argument could be made considering ownership of copies of
phonorecords, DVDs etc. with respect to 35 USC 109. If you don't own
a copy of the content, then who is 35 USC 109 directed at.
> that if you owned the content, then you'd have the rights that the
> copyright owner has. You can't make additional copies of it and sell it can
> you? Only the copyright owner has the right to do that, unless there is a
> license given by that copyright owner.
>
> I've always thought of it as: you buy the media, but you don't own the
> content.
>
> Alexander believes in the First Sale doctrine. But I don't think it applies
> to GPL code unless you actually buy it, which constitutes a contractual
> obligation. And then you still only have the right to sell THAT COPY that you
> bought. Everything else in terms of distribution is covered under license
> including free downloads. You didn't buy anything, there's no contract, so
> you're subject to the license.
Alexander's conclusions are not correct, but you don't have to treat
first sale like the tooth fairy in order to get there.
Isaac
Lee Hollaar
>We recognize the difference between owning a book and owning the copyright
>to the book.
Congress even put it in the copyright statutes:
17 USC 202. Ownership of copyright as distinct from ownership of
material object
Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. Transfer of ownership of any material object,
including the copy or phonorecord in which the work is first fixed,
does not of itself convey any rights in the copyrighted work embodied
in the object; nor, in the absence of an agreement, does transfer of
ownership of a copyright or of any exclusive rights under a copyright
convey property rights in any material object.
Barry Margolin
Isaac <is...@latveria.castledoom.org> wrote:
> > -How about when you buy a book at the bookstore? Do you own that copy?
> >
> > Of the book? Yes. Of the copyrighted content? I don't think so. My argument
> > is
>
> What in the world constitutes the copy of a book that you own? I think
> your trying to dissect inseparable. When 35 USC 117 talks about owners
> of copies, is it your position that the section is talking about
> the right of the copyright holder to make copies? That seems exceedingly
> silly given that 35 USC 117 is an exception to the copyright holder's
> exclusive rights. Is 35 USC 117 talking about preventing the copyright
> holder from suing himself.
The copyright owner (or a publisher acting as his agent) makes copies of
the book, and then sells those copies to consumers (perhaps via
intermediate sales to distributors and bookstores). And the consumer
may loan the copy to friends, sell it to a used-book store, give it to a
library, mark it up with highlighter, tear out pictures to form
collages, etc.
I suspect that before the first-sale doctrine was legislated, there was
some confusion over whether highlighting and making collages were among
the copyright holder's exclusive rights, because they might be
considered to be creation of derivative works. This section makes it
clear that the owner of a particular physical object is free to do what
he likes with that object, without having to worry about the
intellectual property rights that might apply to the information encoded
on that object.
Lee Hollaar
>The copyright owner (or a publisher acting as his agent) makes copies of
>the book, and then sells those copies to consumers (perhaps via
>intermediate sales to distributors and bookstores). And the consumer
>may loan the copy to friends, sell it to a used-book store, give it to a
>library, mark it up with highlighter, tear out pictures to form
>collages, etc.
>
>I suspect that before the first-sale doctrine was legislated, there was
>some confusion over whether highlighting and making collages were among
>the copyright holder's exclusive rights, because they might be
>considered to be creation of derivative works. This section makes it
>clear that the owner of a particular physical object is free to do what
>he likes with that object, without having to worry about the
>intellectual property rights that might apply to the information encoded
>on that object.
It might be clear to you, but it wasn't to the Ninth Circuit.
See Mirage Editions Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341,
8 USPQ2d 1171 (CA9, 1998). But for a contrary opinion, see
Lee v. A.R.T. Co. a/k/a Albuquerque A.R.T. Co., 125 F.3d 580,
44 USPQ2d 1153 (CA7 1997).
Isaac
>
> The copyright owner (or a publisher acting as his agent) makes copies of
> the book, and then sells those copies to consumers (perhaps via
> intermediate sales to distributors and bookstores). And the consumer
> may loan the copy to friends, sell it to a used-book store, give it to a
> library, mark it up with highlighter, tear out pictures to form
> collages, etc.
>
> I suspect that before the first-sale doctrine was legislated, there was
> some confusion over whether highlighting and making collages were among
> the copyright holder's exclusive rights, because they might be
> considered to be creation of derivative works. This section makes it
> clear that the owner of a particular physical object is free to do what
> he likes with that object, without having to worry about the
> intellectual property rights that might apply to the information encoded
> on that object.
I think you are traveling a bit too far down the path Alexander blazes.
I don't think first sale gives you the right to make derivative works.
To the extent that doing so does not fit some other exception like
fair use, creating derivative works without permission is infringement
unexcused by first sale.
That's the part of the law that the 9th Circuit got right in
Mirage Editions v. A.R.T. Albuquerque. The court properly reasoned
that first sale did not give permission to create and distribute
derivative works. Unfortunately they also ruled that gluing pictures
to ceramic tiles created a derivative work.
I believe that Sec. 109(a) codifies what was judge made law prior to
its enactment. The new stuff in 109 is the part limiting the application
of first sale in a few situations where Congres found that first
sale was being abused commercially to the detriment of copyright
holders.
I'm going to take the opportunity to point out that Sec. 106 of Title
17 gives to copyright holders the exclusive right to *prepare*
derivative works. I don't think copyright holders have a similar right
to prevent the creation of compilations involving their works. They
are limited to relying on their right to prevent the distribution of
their work in compilations. IMO that makes the question of whether
linking forms a derivative work or a compilation possibly an
important one in discussing the implications of the GPL.
Isaac