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Re: using GPL api to be used in a properietary software
From: |
Alexander Terekhov |
Subject: |
Re: using GPL api to be used in a properietary software |
Date: |
Tue, 15 Mar 2005 12:15:43 +0100 |
Martin Dickopp wrote:
[...]
> trying to circumvent the library license, ...
Exercising the (distribution) right that owners of "copies" (in the
sense of 17 USC 101) enjoy under copyright law (which the GPL purports
to follow but actually blatantly misstates) is not a "circumvention".
There are a whole bunch of misstatements of the copyright law in the
GPL. The first is that "nothing else grants you permission to modify...
the Program."
17 USC 117(a) does grant that permission in a special, but important
instance.
There is nothing in the GPL that says that a person is not the "owner
of a copy" of the program. So, as long as the adaptation (modification)
is "an essential step in the utilization of the computer program in
conjunction with a machine" it is permitted without the GPL.
The second is that "nothing else grants you permission to ...
distribute the program."
17 USC 109(a) states that:
Notwithstanding the provisions of section 106 (3), the owner of a
particular copy or phonorecord lawfully made under this title, or
any person authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.
According to
http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf
(Judge, Court of Appeal of Dusseldorf (Copyright Senate), etc.)
"contractual limitation of this principle is held to be invalid" in
Germany.
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
"The European Software Directive has provided that the exhaustion
of the copy of a program is applied Community-wide by a first sale
of that copy in the Community with the consent of the right-holder;
once an author has sold a copy of a work, he or she loses the
exclusive distribution right with respect to that work. A
contractual limitation of this principle is held to be invalid,
at least in Germany and Austria.
[...]
If somebody offers software on the Internet for downloading and
links the download with invalid general terms, he can hardly sue
for copyright infringement. Instead, the validity of the standard
terms is a matter for the software distributor: if he wants to use
invalid contractual terms, he bears the risk of their use."
As for the US, < Forward Inline >
-------- Original Message --------
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
Message-ID: <4231A26A.DAE0EE71@web.de>
References: ... <r8e8g2-625.ln1@miriam.mikron.de>
Bernd Paysan wrote:
[...]
> But if you need a secret key to make (working) modifications to the program,
> you have to include it, or at least have an instance that does sign
> whatever modified binary (or hash) you send them.
According to the FSF, the GPL is not a contract.
Under copyright law one just can't restrict distribution of copies
(material objects) lawfully made. Electronic distribution implies
reproduction, but that right is also granted unilaterally to
everybody-and-his-dog by the GPL licensors. So all "copies" (17 USC
101) incorporating publicly available GPL'd works (and their
derivative works lawfully prepared and incorporated in "copies"
thanks the GPL unilateral grant, *not* restricted adaptation right
under 17 USC 117) are "lawfully made" and can be distributed as
their owners see fit notwithstanding purported "must be free"
restrictions stated in the GPL. That's because distribution of
copies lawfully made doesn't require permission of the copyright
proprietors. RedHat's lawyers simply erred in thinking that current
codification of "first sale" doctrine (17 USC 109) needs amendments
(formally codifying "digital first sale"... and as a byproduct, also
clearly stating legality of teleportation*** of books and etc. ;-) )
to break the GPL. The GPL is already totally broken.
< quotes from dmca/sec-104-report-vol-<2|3>.pdf >
Red Hat, Inc.:
Let me just clarify that I don't think anyone today intends to
impact our licensing practices. I haven't seen anything in the
comments, nor have I heard anything today that makes me think
someone does have that intention. What we're concerned about
are unintended consequences of any amendments to Section 109.
The primary difference between digital and nondigital products
with respect to Section 109 is that the former are frequently
licensed. ... product is also available for free downloaded
from the Internet without the printed documentation, without
the box, and without the installation service. Many open source
and free software products also embody the concept of copyleft.
... We are asking that amendments not be recommended that would
jeopardize the ability of open source and free software
licensor to require [blah blah]
Time Warner, Inc.:
We note that the initial downloading of a copy, from an
authorized source to a purchaser's computer, can result in
lawful ownership of a copy stored in a tangible medium.
Library Associations:
First, as conceded by Time Warner, digital transmissions can
result in the fixation of a tangible copy. By intentionally
engaging in digital transmissions with the awareness that a
tangible copy is made on the recipient's computer, copyright
owners are indeed transferring ownership of a copy of the work
to lawful recipients. Second, the position advanced by Time
Warner and the Copyright Industry Organizations is premised
on a formalistic reading of a particular codification of the
first sale doctrine. When technological change renders the
literal meaning of a statutory provision ambiguous, that
provision "must be construed in light of its basic purpose"
and "should not be so narrowly construed as to permit evasion
because of changing habits due to new inventions and
discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S.
151, 156-158 (1975). The basic purpose of the first sale
doctrine is to facilitate the continued flow of property
throughout society.
See also
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
regards,
alexander.
***) http://www.research.ibm.com/quantuminfo/teleportation
--
"Other courts have reached the same conclusion: software is sold
and not licensed."
-- UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
- Re: using GPL api to be used in a properietary software, (continued)
- Re: using GPL api to be used in a properietary software, Stefaan A Eeckels, 2005/03/14
- Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/14
- Re: using GPL api to be used in a properietary software, Alexander Cline, 2005/03/14
- Re: using GPL api to be used in a properietary software, Martin Dickopp, 2005/03/14
- Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/15
- Re: using GPL api to be used in a properietary software, David Kastrup, 2005/03/15
- Re: using GPL api to be used in a properietary software,
Alexander Terekhov <=
- Re: using GPL api to be used in a properietary software, David Kastrup, 2005/03/15
- Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/15
- Re: using GPL api to be used in a properietary software, David Kastrup, 2005/03/15
- REPOST: Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/17
- Re: REPOST: Re: using GPL api to be used in a properietary software, David Kastrup, 2005/03/17
- Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/15
- Re: using GPL api to be used in a properietary software, Isaac, 2005/03/16
- Re: using GPL api to be used in a properietary software, Alexander Terekhov, 2005/03/17
- Re: using GPL api to be used in a properietary software, Martin Dickopp, 2005/03/17
- Re: using GPL api to be used in a properietary software, Isaac, 2005/03/17