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

On Mon, Jun 07, 2004 at 09:29:59PM -0400, Michael Poole wrote:
> Adam McKenna writes:
> > 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."

It also says "Again, it is likely that many transactions involving copies of
programs are entered into with full awareness that users will modify their
copies to suit their own needs, and this should be reflected in the law."

We could probably sit here all day and quote passages from CONTU to each
other.  The bottom line is that needs change over time.  I might need a 
program to do something today that I didn't need it to do when I acquired
it.  Someone may have found a bug that the author is refusing to acknowledge
or fix.  I may need a feature that the author won't implement.  The author
may have died or gone out of business.  What the CONTU report says, in effect,
is that once I have acquired a legal copy of a program, I am free to modify
it to do what I need it to do, without the permission of the copyright holder.

> 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.

I somehow doubt that the document which is responsible for the law itself
would lend less weight than some subsequent court decision, especially when
considering how explicitly it is worded.  Then again, I'm not a lawyer, so I
concede that it's possible.

> > 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.

And how will someone prove that I've made copies of a GPL'd program for
non-backup purposes?

> 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.

Out of curiosity, how does one accept the GPL before downloading a GPL'd work,
particularly if the person doesn't know that the work has been licensed under
the GPL?  Should distribution sites implement 'click-wrap' licensing for GNU
products, or face a potential future lawsuit?

It seems to me that if this is really what the GPL means, it would severely 
stifle the spread of GPL software, and unless the GPL was intentionally
written that way in order to trick people (which somehow I doubt), I would 
tend not to believe that interpretation.

> 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.

Which isn't an impossibility.  I'm still wondering how the MAI v. Peak case
is relevant to any of this.  What you appear to be saying is that if I allow
other people to run my modified GPL program, then I must accept the terms of
the GPL or I am liable for copyright infringement, due to the in-memory copy
they'd be making.  OK, granted.  Is there another point you're trying to make?


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