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Re: OpenCascade license opinion

Francesco Poli wrote:
> On Thu, 20 Dec 2007 17:45:28 +0000 John Halton wrote:
> > I don't think there's a problem with making the licence binding on
> > users or downloaders. Quite the contrary: someone who uses or
> > downloads the software is performing an "act restricted by the
> > copyright" for which a licence is required.
> That's why I asked for comments from real lawyers: I thought that, at
> least in some jurisdictions, using or (legally) receiving a work was not
> an exclusive right of the copyright holder.
> Maybe I'm wrong, so please help me understand.

Specifically for computer programs, some jurisdictions recognize the
right to load and execute a program as an exclusive right of the
copyright holder. The 1991 EU Copyright Directive for instance explicitly
says so, but goes on to say that a lawful acquirer of software may
load and execute this software. In a license contract the parties can
make different arrangements.
See articles 4(a) and 5(1).

This should be present in Italian copyright law. If I'm not mistaken
this is article 64bis(1) and 64ter(1) of the _legge di protezione del
diritto d'autore_

If the copyright holder makes a program available for download
(or permits someone else to do so), then I would say that anyone who
downloads the work is a "lawful acquirer" and therefore may execute
the work without bothering with the license. Of course redistribution
requires specific permission.

In other words, in Europe I can download and use any GPL software
even when I explicitly refuse to accept the GPL. 

A different case is exhaustion (what Americans call "first sale").
If I acquire a copy of a work on a physical carrier, I can use the
work on that carrier without restriction, including redistributing it.
This right does not apply to downloaded software.

TINLA and all that.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

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