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Re: the FSF's GPLv3 launch conference

On 1/7/06, Glenn Maynard <glenn@zewt.org> wrote:
> On Fri, Jan 06, 2006 at 10:59:01PM -0500, Anthony DeRobertis wrote:
> > Alexander Terekhov wrote:
> > > The gang should better stop misstating the copyright act, to begin with.
> > > But actually it doesn't really matter given that Wallace is going to put
> > > the entire GPL'd code base into quasi public domain pretty soon anyway
> > > (antitrust violation -> copyright misuse -> quasi public domain/copyright
> > > impotence). http://www.ip-wars.net/public_docs/wallace_v_fsf_36.pdf
> >
> > I would like to take a moment to predict that this event will not transpire.
> FWIW, I read Alexander's message as a vaguely amusing troll, given its
> tone and irrelevance.  Feeds the trolls if you like, though.  :)

Well, Wallace v GPL aside for a moment, regarding misstatements of the
copyright act in the GPL, here's a quote from Lee Hollaar (the author of


In article <nm9fyovbw4b....@mass-toolpike.mit.edu> Bruce Lewis
<brle...@users.sourceforge.net> writes:
>Alexander Terekhov <terek...@web.de> writes:
>> And what's the point of "and distribute"? As an owner of a copy
>> lawfully made I'm free to distribute it.
>US copyright statute, chapter 1, section 106(1) and (3) defines copying
>and distrubution as separate exclusive rights.
>I don't know why these rights are listed separately either, but it seems
>prudent that if you want to grant both rights you should be explicit
>about it, rather than assuming right (1) implies right (3).

Because it was felt that both somebody who reproduces works but does
not distribute them to the public, and somebody who distributes works
to the public that were reproduced by another, should both be infringers?

As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109.  (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")

The heart of the provision is its first sentence:
     Notwithstanding the provisions of section 106(3), the owner of a
     particular copy or phonorecord lawfully made under this title, or
     any person authorized by such owner, is entitled, without the
     authority of the copyright owner, to sell or otherwise dispose
     of the possession of that copy or phonorecord.

But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.

But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

The Copyright Office has noted an interesting potential quirk in the
way this provision is worded.  The test is whether the copy was
"lawfully MADE" indicating that we look only to the time of the
creation of a copy to determine whether this provision applies.  The
Supreme Court said in the Sony Betamax decision that copies of TV
programs made for purposes of time-shifting were lawfully made because
they were a fair use.  Can those copies then be sold under the rule
of Section 109?

Note that the GPL does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works."  It also ignores Section 117
when, which gives "the owner of a copy of a computer program" the
right to "make or authorize the making of another copy OR ADAPTATION
of that computer program" if it is "an essential step in the
utilization of the computer program in conjunction with a machine".

As for Eben Moglen's assertion that "Licenses are not contracts" in
http://www.gnu.org/philosophy/enforcing-gpl.html (previously cited),
he offers little justification for the statement:
    the work's user is obliged to remain within the bounds of the
    license not because she voluntarily promised, but because she
    doesn't have any right to act at all except as the license permits.

In light of Sections 109 and 117 (and possibly other exceptions),
that statement is wrong with respect to United States copyright law.
Just look at the wording of Section 109 -- "is entitled, WITHOUT THE


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