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Re: Distributing GPL software.

On 1/12/06, Benjamin A'Lee <lists@benalee.co.uk> wrote:
> If they refuse to provide you the source (or access to the source, or
> whatever), then they are in violation of the GPL.  Is this not against
> the law

Downloads aside for a moment and assuming that the GPL is a
bilateral contract (contrary to the GPL's own idiotic wording
reflecting moronically utopian FSF's/RMS's political views)...

Suppose for a moment that the GPL said nothing about distribution.
The statutory right of distribution for copies "lawfully made" (pursuant
to license grants) would then apply. 17 USC 109. But the GPL limits
the licensee's freedom by imposing contractual obligation and
forbearance from statutory right under 17 USC 109 through a
contractual covenant.

To quote one really nice MS brief,

While a party that owns copyright rights is ordinarily entitled to pursue
infringement claims against any third party who violates them, the courts
have recognized that the rights and remedies available to copyright
holders change significantly when the owner elects to give others a
nonexclusive license to use such property. In that situation, the
owner/user relationship is fundamentally different. Absent a license, the
rights of the copyright holder are governed by statutory and common
law rules applicable to such rights. With a license, however, the terms
and covenants of the license establish the applicable rules. See
Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990)
(in granting a copyright license, the licensor gives up its right to sue
the licensee for infringement).

Recognizing that the existence of consensual licensing arrangements
significantly changes the applicable rules and the expectations of the
parties, federal courts have held that a party cannot normally pursue a
copyright infringement action based upon the licensees breach of
covenants in the license agreement. As a general rule, " if the
[licensees] improper conduct constitutes a breach of a covenant
undertaken by the licensee . . . and if such covenant constitutes an
enforceable contractual obligation, then the licensor will have the
cause of action for contract," not for copyright infringement. Graham
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey,
698 F.2d 991, 993 (9th Cir. 1983):

[A] case does not arise under the federal copyright laws . . . merely
because the subject matter of the action involves or affects a copyright.

It's the same basic law in all circuits.

> (in the US, UK, wherever)?

Well, I'm in the DE. But in both UK and DE *the Rome Convention on
on the law applicable to contractual obligations* governs its interpretation.
As a contract (properly construed, contrary to its wording and FSF' stance)
GPL is "most closely connected" to Boston. It would be insane to have
different interpretations depending on origin of this or that
contribution (combinations aside for a moment) in works that are open
contributions world-wide.


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