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Re: Adobe open source license -- is this licence free?

More pain to plonked Miller and other FSF's lackeys.

On 1/26/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
> Just to stress...
> On 1/26/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
> > On 1/26/06, Raul Miller <moth.debian@gmail.com> wrote:
> > > On 1/26/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
> > > > On 1/26/06, Yorick Cool <yorick.cool@fundp.ac.be> wrote:
> > > > [...]
> > > > >  And licensing software is not selling it.
> > > >
> > > > Yorick, Yorick. The courts disagree.
> > >
> > > And then quotes as proof a huge chunk of text which includes
> > > the explanation:
> > >
> > > > A number of courts have held that the sale of software is the sale of
> > > > a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd.
> > > > v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929
> > > > F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147,
> > > > 1150 (6th Cir. 1991). It is well-settled that in determining whether a
> > > > transaction is a sale, a lease, or a license, courts look to the
> > > > economic realities of the exchange.
> > >
> > > In other words: when money changes hand in the sale of software,
> > > it's fair to say that the person getting the software has been sold
> > > a licensed copy of that software (at least, when the sale is legal).
> > >
> > > This shouldn't be very surprising.  Many books get published under
> > > an "all rights reserved" license, but the people who buy those
> > > books are still allowed to turn around and transfer the copy to
> > > someone else.
> > >
> > > A person could even say that the "economic realities of the
> > > exchange" are different when no money moves from the recipient
> > > of the software to the copyright holder.
> >
> > Hey plonked Miller, gratis copies also fall under the "first sale"
> > (for which the trigger is nothing but ownership of a particular copy
> > or phonorecord lawfully made).
> >
> > But anyway, <http://www.gnu.org/philosophy/selling.html>. Kuh-kuh.
> Go read 17 USC in its entirety (hello "as a whole"-in-the-GPL hello)
> including section 109. 106(3) is severely limited by the "exception"
> to 106(3) in section 109. The reason why 106(3) is listed in 106 is to
> provide legal basis to punish not only somebody who pirates works and
> who may not even try or want to distribute pirated copies, but also
> somebody who distributes pirated copies to the public that were
> unlawfully made by another. Now, plonked Miller, you tell me how does
> that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps
> you can. I doubt it.

Here's what the author of
http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his
treatise, not the Foreword written by the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee) who
worked with the Chief Judge and the Chief Intellectual Property
Counsel to the Senate Judiciary Committee on Internet, copyright, and
patent issues as a Committee Fellow had to say about the GNU legal
nonsense version 3.

comment 388: Not a correct statement of copyright law
Regarding the text: However, nothing else grants you permission to
propagate or modify the Program or any covered works.
In section: gpl3.notacontract.p0.s3

Submitted by: hollaar

This is not a correct statement of copyright law, at least in the
United States. With respect to "propagate", it is likely a tautology
because of the defintion of "propagate" covering only things "that
require permission under applicable copyright law". But for "modify",
17 U.S.C. 117 permits the "owner of a copy of a computer program" to
make an "adaptation" in particular circumstances, and makes it clear
that making that adaptation does not "infringe copyright if you do not
accept this License." It also does not seem to recognize the "first
sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy "without the authority of the copyright owner".
Perhaps the interplay between the definition of "propagate" and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.
noted by hollaar

comment 389: Not a correct statement
Regarding the text: You may not propagate, modify or sublicense the
Program except as expressly provided under this License.
In section: gpl3.termination.p0.s1
Submitted by: hollaar

As I noted in more detail in my comments on Paragraph 9, this is not
an accurate statement. In the United States, 17 U.S.C. 109 ("first
sale") and 117 ("computer programs") allow the owner of a
lawfully-made copy to modify it in certain circumstances and to
redistribute it without permission of the copyright owner.
noted by hollaar

comment 390: Permission may not be required for use
Regarding the text: which means permission for use
In section: gpl3.licensecompat.p6.s1
Submitted by: hollaar

In the United States, at least, permission may not be required to use
a computer program if the user is the lawful owner of a copy. See 17
U.S.C. 117. United States copyright law does not give the copyright
owner a right to control use (although the DMCA does provide sort of
an access right if the information is protected by DRM, see 17 U.S.C.
1201(a), which does not apply here because of the anti-DRM language).
Even if you regard the "use" of the computer program as a
"reproduction" because it is being copied into memory (see MAI v.
Peak, http://digital-law-online.info/cases/26PQ2D1458.htm), that
reproduction is specifically allowed by 17 U.S.C. 117 for the lawful
owner of the copy of the computer program.
noted by hollaar

comment 570: Just saying it doesn't make it so
Regarding the text: No covered work constitutes part of an effective
technological protection measure
In section: gpl3.drm.p1.s1
Submitted by: hollaar

A covered work will be "part of an effective technological protection
measure" (a term that mimics the DMCA "technological measure that
effectively controls access to a work", much like "derived from"
mimics "derivative work") based on what it does, not what you say. For
example, you can't exempt yourself from patent law by simply stating
that the "covered work is not a process, machine, manufacture, or
composition of matter" (the classes of patentable things in the United
noted by hollaar


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