Martin Dickopp wrote: [...] > trying to circumvent the library license, ...
Exercising the (distribution) right that owners of "copies" (in the sense of 17 USC 101) enjoy under copyright law (which the GPL purports to follow but actually blatantly misstates) is not a "circumvention". There are a whole bunch of misstatements of the copyright law in the GPL. The first is that "nothing else grants you permission to modify... the Program." 17 USC 117(a) does grant that permission in a special, but important instance. There is nothing in the GPL that says that a person is not the "owner of a copy" of the program. So, as long as the adaptation (modification) is "an essential step in the utilization of the computer program in conjunction with a machine" it is permitted without the GPL. The second is that "nothing else grants you permission to ... distribute the program." 17 USC 109(a) states that: 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. According to http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf (Judge, Court of Appeal of Dusseldorf (Copyright Senate), etc.) "contractual limitation of this principle is held to be invalid" in Germany. http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "The European Software Directive has provided that the exhaustion of the copy of a program is applied Community-wide by a first sale of that copy in the Community with the consent of the right-holder; once an author has sold a copy of a work, he or she loses the exclusive distribution right with respect to that work. A contractual limitation of this principle is held to be invalid, at least in Germany and Austria. [...] If somebody offers software on the Internet for downloading and links the download with invalid general terms, he can hardly sue for copyright infringement. Instead, the validity of the standard terms is a matter for the software distributor: if he wants to use invalid contractual terms, he bears the risk of their use." As for the US, < Forward Inline > -------- Original Message -------- Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch Subject: Re: Stallman rants about FreeBIOS Message-ID: <[EMAIL PROTECTED]> References: ... <[EMAIL PROTECTED]> Bernd Paysan wrote: [...] > But if you need a secret key to make (working) modifications to the program, > you have to include it, or at least have an instance that does sign > whatever modified binary (or hash) you send them. According to the FSF, the GPL is not a contract. Under copyright law one just can't restrict distribution of copies (material objects) lawfully made. Electronic distribution implies reproduction, but that right is also granted unilaterally to everybody-and-his-dog by the GPL licensors. So all "copies" (17 USC 101) incorporating publicly available GPL'd works (and their derivative works lawfully prepared and incorporated in "copies" thanks the GPL unilateral grant, *not* restricted adaptation right under 17 USC 117) are "lawfully made" and can be distributed as their owners see fit notwithstanding purported "must be free" restrictions stated in the GPL. That's because distribution of copies lawfully made doesn't require permission of the copyright proprietors. RedHat's lawyers simply erred in thinking that current codification of "first sale" doctrine (17 USC 109) needs amendments (formally codifying "digital first sale"... and as a byproduct, also clearly stating legality of teleportation*** of books and etc. ;-) ) to break the GPL. The GPL is already totally broken. < quotes from dmca/sec-104-report-vol-<2|3>.pdf > Red Hat, Inc.: Let me just clarify that I don't think anyone today intends to impact our licensing practices. I haven't seen anything in the comments, nor have I heard anything today that makes me think someone does have that intention. What we're concerned about are unintended consequences of any amendments to Section 109. The primary difference between digital and nondigital products with respect to Section 109 is that the former are frequently licensed. ... product is also available for free downloaded from the Internet without the printed documentation, without the box, and without the installation service. Many open source and free software products also embody the concept of copyleft. ... We are asking that amendments not be recommended that would jeopardize the ability of open source and free software licensor to require [blah blah] Time Warner, Inc.: We note that the initial downloading of a copy, from an authorized source to a purchaser's computer, can result in lawful ownership of a copy stored in a tangible medium. Library Associations: First, as conceded by Time Warner, digital transmissions can result in the fixation of a tangible copy. By intentionally engaging in digital transmissions with the awareness that a tangible copy is made on the recipient's computer, copyright owners are indeed transferring ownership of a copy of the work to lawful recipients. Second, the position advanced by Time Warner and the Copyright Industry Organizations is premised on a formalistic reading of a particular codification of the first sale doctrine. When technological change renders the literal meaning of a statutory provision ambiguous, that provision "must be construed in light of its basic purpose" and "should not be so narrowly construed as to permit evasion because of changing habits due to new inventions and discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156-158 (1975). The basic purpose of the first sale doctrine is to facilitate the continued flow of property throughout society. See also http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf regards, alexander. ***) http://www.research.ibm.com/quantuminfo/teleportation -- "Other courts have reached the same conclusion: software is sold and not licensed." -- UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA _______________________________________________ Gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
