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Re: OpenCascade license opinion



On Fri, 21 Dec 2007 09:44:16 +0100 Arnoud Engelfriet wrote:

> 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

Many, many thanks for this explanation.
Hence, it seems to be a bit more complicated than how I thought, but,
*in the absence of any agreement to the contrary* a lawful acquirer is
not restricted in using a computer program, more or less as my
understanding was.

On the other hand, maybe the Open Cascade license counts as an
agreement, since the copyright holder says that you have to accept
the license in order to download the software (i.e.: in order to become
a lawful acquirer).  Then, after you accepted the license, you are bound
to comply with it even if you only want to use the software (without
redistributing, modifying, and so forth...).

Is that correct?

> 
> 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.

It seems to make sense (and I really hope it works like that).

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

Yes, because here no one said that I have to accept the GPL in order to
download the program.  As a consequence, I can be a lawful acquirer
without having to accept the license: at that point, I can exercise my
lawful acquirer rights, being in absense of any agreement to the
contrary.

Is that correct?

> 
> 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.

That's clear.

> 
> TINLA and all that.

Well, as far as I am concerned, I should add many disclaimers...
IANAL, TINLA, IANADD, TINASOTODP, for sure.
But maybe the following one, as well: the above reasoning is an attempt
to better understand things and should not (yet) be taken as a set of
conclusive statements on the subject.


-- 
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..................................................... Francesco Poli .
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