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

On 7/14/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> On Thursday 14 July 2005 11:56 am, Humberto Massa Guimarães wrote:
> > He affirmed that one has to agree to the GPL to possess a copy of a
> > GPL'd program.
> WHAT?!  No, never.  Possession is not the issue, the issue is copying.  And I
> am not convinced that making an FTP connection and downloading the material
> from a licensed distributor does not constitute copying, thus requiring
> permission.  It is an interesting legal argument...  could be true, but it
> could also NOT be true.  I'm really not sure.  Can you CITE something?

Er, Specht v. Netscape?  It would be kind of stupid to say that
Netscape could have bound Specht to a browse-wrap license by saying,
"Oh, by the way, we're not issuing you a copy, you're copying it
yourself -- and that means you need a copyright license." 
Peer-to-peer may have IMHO confused the Napster court a little (in
dicta), but apt-get is retail delivery, just like an online newspaper.
 A public web server (without the sort of click-through unique-link
stuff that Sun does for its JDK downloads) just can't shove the legal
burden of "copying" onto the client.

Incidentally: if there's a theory against "deep linking" or "framing"
that holds water, it is either that the linker is misappropriating the
linkee's "selection and arrangement" creative expression in creating
the derivative site, or that the composed derivative site is a
collective work outside the scope of license that the copyright
holders on individual contributions authorized.

> Here's the way I'm thinking about it.  Apple has a license agreement with Sony
> to distribute music.  Apple can make as many copies as it wants under the
> agreement and distribute it to whomever and charge whatever it wants
> (including give it away for free).  An Apple technician puts a copy of TMBG's
> "Man, It's Loud in Here" on a server, but fails to place the appropriate
> password protection on the server.  I come along, discover this song is
> available for one and all, and download a copy.  I agree to nothing in the
> process.  Apple later discovers its mistake, removes the song, and threatens
> to sue me.  What claims can it make?

Sounds to me like shoplifting the CD that the stocker forgot to stick
the anti-theft gadget on.  You knew perfectly well that Apple doesn't
give away music for free unless it's labeled "free single of the week"
or the equivalent.  Sony might also have a cause against Apple for
neglecting its fiduciary duty; but there is probably contract language
between them that obviates the need to cry tort.  Which one of them
can sue you?  Doesn't matter much; shoplifting is the DA's problem,
not usually a matter for a civil suit, and restitution may be ordered
by a criminal court to whoever demonstrates himself to be the injured
party.  IANAL, etc.

> The obvious answer is conversion...  but is there a copyright violation here?
> Strikes me that I have made an unauthorized copy, denied someone their
> ability to profit from their works.  I smell statutory damages.

Best get your nose checked.  :-)  Allow me to direct you to a more
competent paraphrase of the purpose of statutory damages than I could
produce: http://www.wipo.int/enforcement/en/faq/judiciary/faq08.html .
 A judge would be unlikely to award attorney's fees to a plaintiff who
pursued a copyright claim in federal court against someone whose
behavior could easily have been handled as a misdemeanor shoplifting
case; and $750 or so to offset "administrative expenses" is not going
to cover the plaintiff's costs.  Which isn't to say that the RIAA
mightn't do it for the fear factor, but a district court opinion
saying "I'm awarding you the statutory minimum but I think you're
jerks" won't help them much.

(Peer-to-peer is of course different because there's no "shop" to lift
from.  But stringing some poor sod up for minimal home bootlegging is
pointless when there are "music sharing clubs" with "membership fees"
to go after.)

> Someone a while back mentioned first sale...  which is an interesting place to
> go.  Is the idea that every apt-get I do is actually a series of first sale
> transactions where the consideration is nothing?  That would probably work,
> other than the fact that it leaves Debian in the unique position to revoke
> all of the first sale agreements because its not binding without some form of
> consideration.

AFAIK the "sale" in "doctrine of first sale" doesn't require
consideration, just transfer of ownership of copies.  17 USC 109
appears to bear me out.  The transfer of the copy is not revocable. 
The grant of rights in a non-license like the MIT X11 notice may be
(modulo "reliance to one's detriment" / equitable estoppel); but
that's because it's an offer of continuing performance with no return
consideration.  You can't continue to rely on a revoked copyright
license to make new copies or new derivative works (there's fair use,
but that has nothing to do with license); but you can retain, and keep
using, and sell or transfer, the copies you already have.

The GPL, on the other hand, can't be revoked once accepted because it
is a true offer of bilateral contract.  The consideration in the GPL
is in the benefit to the authors' reputation and the likelihood (it
needn't be a requirement) that patches and suggestions for improvement
will be sent upstream.  Planetary Motion, etc.; blenderized equine in

> But I'd really like to return to the question that got us all started.  Is
> calling the GPL a "License Agreement" a bug?  Apparently my "you have to
> agree to the GPL anyway" theory has gotten people all worked up...  so,
> obviously that's not going to convince anyone on this list.  So can someone
> explain to me why its NOT a license agreement?  Do you not in fact have to
> agree to the GPL if you intend to use the rights under the GPL?

Of course it's a license agreement, which is a species of offer of
contract.  But what it's titled doesn't make a damn bit of difference.

- Michael

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