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Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls the GPL "License Agreement", ie; a contract.

On 7/13/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> As for Specht V. Netscape, Michael, I know you are a smart guy who is good
> with citations; it boggles me that you would reference this case.  This case
> deals with the enforceability of click-wrap licenses, with particular
> attention to forced arbitration clauses.  It doesn't get to copyright
> infringement at all, which is my point with the GPL and its binding nature.

We are not talking about copyright infringement, we are talking about
standards of acceptance through conduct when an end user picks up a
browse-wrapped freebie.  The "free newspaper" analogy in Specht is a
good one, and the opinion is generally quite articulate about the
basis for drawing a line between click-wrap and browse-wrap.

Click-wrapping the GPL is of course insane, i. e., inconsistent with
its plain terms about acceptance and unlikely to survive construction
against the offeror.  If the person doing the click-wrapping is not
the sole copyright holder on the contents, it may also be a violation
of the covenant in GPL Section 6 not to "impose any further
restrictions on the recipients' exercise of the rights granted

> "If individual A is authorized to distribute software, and individual B
> initiates an action that results in a copy being made of that software from
> A's distribution server, has B violated the original author's 106(1) rights?
> Or, as I believe Glenn is suggesting (and may be right...  question is
> really interesting) does the grant to distribute authorize B to give others
> the right to copy in the process of distribution?"

B is not doing the copying.  A is doing the copying.  In the scenario
you describe, B simply doesn't ever have more than one copy in her
possession, modulo the "fuzz factor" implied by 17 USC 117 and common
sense.  If A uses a distribution technique for free newspapers that
delays the making of additional "copies" (in a copyright sense) until
end users request them, that is not B's problem.  I have not seriously
researched the C-facilitates-B's-download-from-A case, which is
basically a form of deep linking; compare
http://www.netlitigation.com/netlitigation/linking.htm .

> If Glenn is wrong, and a downloader does not agree to the GPL, then it seems
> to me the downloader has no right to retain a copy of the software.

Compare Bobbs-Merrill v. Straus (
http://laws.findlaw.com/us/210/339.html ), the case in which the
"doctrine of first sale" (now 17 USC 109(a)) was first enunciated:

The wholesale dealers, from whom defendants purchased copies of the
book, obtained the same either directly from the complainant or from
other wholesale dealers at a discount from the net retail price, and,
at the time of their purchase, knew that the book was a copyrighted
book, and were familiar with the terms of the notice printed in each
copy thereof, as described above, and such knowledge was in all
wholesale dealers through whom the books passed from the complainants
to defendants. But the wholesale dealers were under no agreement or
obligation to enforce the observance of the terms of the notice by
retail dealers, or to restrict their sales to retail dealers who would
agree to observe the terms stated in the notice.

Electronic distribution is different in that it puts "publishers",
"wholesale dealers", and "retail dealers" into the same boat.  They
all make copies, not just handle them, and they all need to accept
some copyright license, either formally or through conduct -- unless
they want to be stuck arguing equitable estoppel, which the GPL puts
them in no real position to do, even if its drafters promote theories
about it that are arrant nonsense.  End users are not in that boat,
nor is anyone who merely handles copies on physical media.  While in
some sense a retail dealer could (as I have argued previously)
construct a scheme for handling electronic copies that circumvents GPL
acceptance, I would expect most judges to frown on that.  (Do I hear
faint echoes of "la la la" from other threads?)

- Michael

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