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

On Wednesday 13 July 2005 02:40 pm, Michael K. Edwards wrote:
> 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.

I'm talking about copyright infringement.  Maybe I'm the only one?!  The 
question is whether its "okay" to mandate acceptance of the GPL at download.  
I am suggesting that you have to agree to it in order to avoid copyright 
infringement.  Hence, if you have to agree the GPL to copy it off the server 
in the first place, a "click-wrap" license is no more non-free than just 
simply attacting the license as part of the COPYING file.

> 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
> herein".
> > "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 .

I don't see how A is copying.  All A is doing is making it available for 
others to copy.  Consider a newspaper salesman.  He has newspapers lined up 
with the headlines available for everyone to see.  If a customer approaches 
and copies down the headlines and what parts of the articles he can see, that 
person is infringing the copyright...  even if the copyright salesman has the 
right to distribute.  

And no, (s)117 does not cover this instance.  (s)117 relates to use, which is 
undefined in copyright law, but is definetly unrelated to any of the 
activities involved in (s)106 rights...  like copying and use.

> > 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:
> <quote>
> 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.
> </quote>
> 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?)

I don't think that first-sale and digital goods maps very well...  I'm really 
uncertain as to how the courts have fallen on the issue.  I don't see how 
first sale authorizes me to download (and hence make a copy) of source code 
to which I don't have permission to copy.

Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://probonogeek.blogspot.com

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