Re: PHPNuke license

[Walter Landry <wlandry@ucsd.edu>]

David Turner <novalis@novalis.org> wrote:
> On Mon, 2003-03-10 at 15:47, Walter Landry wrote:
> > Don Armstrong <don@donarmstrong.com> wrote:
> > > On Mon, 10 Mar 2003, David Turner wrote:
> > > > On Fri, 2003-03-07 at 00:19, Anthony Towns wrote:
> > > >> Well, they try to anyway. If there's no copying taking place, I fail
> > > >> to see how it can apply, whether it tries to or not.
> > > > 
> > > > Because the preparation of derivative works is one of the exclusive
> > > > rights of copyright holders.  Please read 17 USC 106 (2) again.
> > > 
> > > Yet again, it is not enough to cite 17 USC 106 (2), without citing 17
> > > USC 107 and the caselaw based on 17 USC 107.
> > > 
> > > Anthony is quite reasonable in presuming that the current
> > > interpretation of "Fair Use" applies to cases where there is no
> > > copying taking place. You are free to disagree, but merely citing 106
> > > is not sufficient.
> > 
> > In particular, I thought there was court precedent holding that it is
> > ok for people using proprietary programs to swap patches with each
> > other.  It wouldn't make much sense to be able to swap patches if you
> > couldn't apply them.
> 
> I would be surprised at this.  Please give me a cite.

Straight from http://cr.yp.to/softwarelaw.html

  Patches

  According to the CONTU Final Report, which is generally interpreted
  by the courts as legislative history, ``the right to add features to
  the program that were not present at the time of rightful
  acquisition'' falls within the owner's rights of modification under
  section 117.

  Note that, since it's not copyright infringement for you to apply a
  patch, it's also not copyright infringement for someone to give you
  a patch. For example, Galoob's Game Genie, which patches the
  software in Nintendo cartridges, does not infringe Nintendo's
  copyrights. ``Having paid Nintendo a fair return, the consumer may
  experiment with the product and create new variations of play, for
  personal enjoyment, without creating a derivative work.'' Galoob
  v. Nintendo, 780 F. Supp 1283 (N.D. Cal. 1991), affirmed, 22
  U.S.P.Q.2d 1587 (9th Cir. 1992). See also Foresight v. Pfortmiller,
  719 F. Supp 1006 (D. Kan. 1989).

Regards,
Walter Landry
wlandry@ucsd.edu