Re: OpenCascade license opinion
On 21/12/2007, Arnoud Engelfriet <arnoud@engelfriet.net> wrote:
> Francesco Poli wrote:
> 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.
The EU copyright directive formalised what was already the
acknowledged position, at least in common law jurisdictions: namely
that to use software generally involves making a copy of it (when the
software is copied from a storage medium into RAM, for example), and
hence requires the consent of the copyright owner.
> 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.
I'm not sure I agree with that as a blanket statement. The problem is
defining "lawful acquirer", a term originating from a (largely)
pre-downloading era. It should be noted that the UK implementation of
these provisions refers to "lawful *user*", which is defined as
someone who "has a right to use the program", whether under a licence
or otherwise. Now it's possible the UK has misimplemented the
directive here, but it seems more likely that the term "lawful
acquirer" was always intended to mean "someone who acquires the
software in such a way that they have the right to use it".
And the recitals to the directive emphasise that this is a "limited
exception" to "allow the reproduction technically necessary for the
use of that program by the lawful acquirer". If the intention was to
create something akin to a doctrine of exhaustion for software - so
that only the original licensee needs to have a licence at all - then
this would have been stated more categorically.
It also seems to take us perilously close to the ever-popular "Google
Images fallacy" - i.e. "If it's on Google Images, you have the right
to use it".
> In other words, in Europe I can download and use any GPL software
> even when I explicitly refuse to accept the GPL.
For the reasons outlined above, I don't think it is as clear as that.
It probably doesn't make a great deal of practical difference anyway,
given that the GPL allows unrestricted use and modification in the
absence of distribution/conveying. If you want to distribute/convey
the software then you can only do so under 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.
Agreed. As I understand it, "exhaustion" only applies to resale (etc.)
of copyright works that have previously been lawfully placed on the
market within the EEA - i.e. I can sell books and CDs that I've
previously bought. It does not extend to the right to restrict copying
of the work, and that is why it is of little help as regards software.
John
(TINLA)
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