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.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML
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_
http://www.wipo.int/clea/docs_new/en/it/it112en.html
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
--
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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