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Re: You can't get a copy unless you accept the GPL

Adam McKenna writes:

> On Mon, Jun 07, 2004 at 07:20:30PM -0400, Michael Poole wrote:
>> I'm not sure how you interpret that as allowing modifications for
>> personal use -- creating a derivative work or other adaptation would
>> not be "an essential step in the utilization of the computer program"
>> (etc; note the qualification in the original "for no other purpose").
>> Contrary to your claim, copyright law governs most tangible copies,
>> derived works, and adaptations.  That is why it explicitly allows what
>> it does.
> The CONTU final report states that "The conversion of a program from one
> higher-level language to another to facilitate use would fall within this
> right, as would the right to add features to the program that were not
> present at the time of rightful acquisition."
> http://digital-law-online.info/CONTU/contu6.html

Be that as it may, I cannot reconcile the comment about adding
features with the preceeding sentence: "Thus, a right to make those
changes necessary to enable the use for which it was both sold and
purchased should be provided."  An earlier statement also suggests
that the authorized changes, if any, would be the minimum necessary:
"[O]ne who rightfully acquires a copy of a program frequently cannot
use it without adapting it to that limited extent which will allow its
use in the possessor's computer."

Since that report was written in the 1970s and passed into law in
1980, a court would likely consider the holding in MAI v Peak to
govern the reading of the law more than the CONTU report.

>> You can Google(tm) for the cases involving MAI Systems Corp from the
>> early and mid 1990s (e.g. MAI v Peak) that held that execution of
>> programs by people other than the owner of a copy constituted
>> copyright infringement vis a vis 17 USC 117; these inspired the 1998
>> addition of 17 USC 117(c) and (d) to protect other maintenance and
>> repair people, but the holdings still apply to other third parties who
>> execute a program on someone else's computer.
> OK.  I'm not sure how this is relevant to a discussion about whether the GPL
> must be accepted in order to download or make personal copies of GPL'd
> software.

GPL section 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."

The GPL may not mention it, but just having (or owning, in 17 USC 117
parlance) a copy does not grant you permission to make personal
non-backup copies the Program.  You may take those steps permitted by
any of copyright law, the GPL or the authors, but no more.

>From another direction, lawyers on each side could probably get rich
arguing whether someone who downloaded a GPLed work without accepting
the GPL should be considered a proper owner of a copy of the work.

Incidentally, if a court agreed with your argument about having an
automatic right to make modifications for personal use, the second
sentence of GPL section 5 would have a bug.


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