From: Alexander Terekhov (terekhov_at_[hidden])
Date: 2004-08-02 03:04:43
Peter Dimov wrote:
> Alexander Terekhov wrote:
> [many things]
> There's one thing that's been bugging me. Wasn't your logic predicated on
> "sale" as it relies on the doctrine of first sale? But downloading something
> at zero cost is not a sale, right?
Wrong. Gifts/gratis/free (sometimes they are called "promotional" ;-) )
copies also fall under "first sale".
Well, let's continue on misc.legal.computing.
P.S. Momchil, you're totally confused.
P.P.S < Forward Inline >
-------- Original Message --------
Subject: Re: It's not a GPL loophole: object and source are equivalent
Lee Hollaar wrote:
> In article <barmar-6E37FC.18034631072004_at_[hidden]> Barry Margolin <barmar_at_[hidden]> writes:
> [Presumably quoting from the GPL ...]
> > 5. You are not required to accept this License, since you have not
> >signed it. However, nothing else grants you permission to modify or
> >distribute the Program or its derivative works. These actions are
> >prohibited by law if you do not accept this License.
> Just because the GPL states something doesn't make it so. In particular,
> there are a couple of mistatements of the law there.
> 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
> Notwithstanding the provisions of section 106, it is not an
> infringement for the owner of a copy of a computer program to
> make or authorize the making of another copy or adaptation of
> that computer program provided:
> (1) that such a new copy or adaptation is created as an essential
> step in the utilization of the computer program in conjunction
> with a machine and that it is used in no other manner ...
> 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.
> However, you can't dispose of the possession of a computer program by
> rental or lending. See 17 USC 109(b).
> So, a more accurate statement would be:
> However, nothing else grants you permission to modify AND
> distribute the Program or its derivative works. These actions are
> prohibited by law if you do not accept this License.
> (The stuff about signing the license is a little wierd, too. It's not
> really clear the point that is being made. Perhaps it's trying to say
> that since you haven't signed the license, you haven't accepted its
> terms yet, but will have to if you are going to perform an act that
> requires a permission giving in the license.)
It's a fact that the owner of a copy with fixed "adaption of the
GPL'ed work" can duplicate it, throw away the "original" (don't
own it any more), and use all that zillion of duplicates as much
as s/he wants for whatever purpose (apart from distribution) s/he
wants with nobody claiming infringement in the GPL camp. In my
view, that clearly puts the "adaptations" of the GPL'ed works
outside the scope of 17 USC 117 limitation on distribution and 17
USC 109 fully applies. Silly misunderstanding/unawareness of law
by the FSF just can't be disputed:
"The free software movement thinks all those activities are rights,
which all users ought to have; we don't even want to cover those
activities by license. Almost everyone who uses GPL'd software
from day to day needs no license, and accepts none. The GPL only
obliges you if you distribute software made from GPL'd code, and
only needs to be accepted when redistribution occurs. And because
no one can ever redistribute without a license,"
"we can safely
presume that anyone redistributing GPL'd software intended to
accept the GPL. "
That's utter crapola too.
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