[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: the FSF's GPLv3 launch conference

And one more..

On 1/7/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
> 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
> http://digital-law-online.info/lpdi1.0/treatise2.html):
> http://groups.google.com/group/misc.int-property/msg/0e12f3571b78d7bd
> ----
> 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.
> >
> >http://www.copyright.gov/title17/92chap1.html#106
> >
> >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
> ----


One can tie oneself in knots trying to make sense of the GPL and
the statements made about it.  It ignores provisions of the copyright
statutes that allow the modification or redistribution of works
without permission of the copyright owner.  It talks about "derived"
works which don't seem to be the same as "derivative works."  And
the explanations from RMS and others often make little sense, as
in the case where something was a derived work until somebody wrote
a non-GPLed math library compatible with the GPLed one.

One has to ask oneself whether it makes any difference if the GPL
is a "contract" or not, keeping in mind that there hasn't been any
case where the FSF has sued anybody over the GPL.  I suspect that
if they did sue somebody, they would throw in a breach of contract
claim just in case.

It will be interesting to see what the upcoming third version of
the GPL will be like, considering that it is being written by somebody
with legal knowledge, and not just RMS.


Reply to: