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Re: When is a GPL program which runs in a web site 'conveyed'?


From: rjack
Subject: Re: When is a GPL program which runs in a web site 'conveyed'?
Date: Thu, 26 Jun 2008 18:02:11 -0400
User-agent: Thunderbird 2.0.0.14 (Windows/20080421)

address@hidden wrote:

They argue that we wouldn't 'distribute' the program so that the GPL
requirements won't hold.

Whether you distribute or not, the GPL requirements won't hold under U.S. copyright or contract law. The GPL copyright license is a contract between two or more parties to confer copyright permissions to designated third party donee benficiaries. In the case of the GPL the donee beficiaries are "all third parties" -- which is the general public. There are no copyright "scope of use" restrictions in the GPL, therefore there is no basis for filing any suit under authority of the Copyright Act for copyright infringement.

Any restrictions in the GPL are contractual requirements. These contractual provisions purport to regulate the distribution and derivate rights of "all third parties" in all future "downstream recipients". This attempt to regulate the copyrights of all future third parties under state contract law is clearly preempted by 17 USC § 301:

------------------------------------------------------------------------------
§ 301. Preemption with respect to other laws:
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
------------------------------------------------------------------------------

You have been handed a free gift of GPL code by lawyers who wouldn't know a copyright license-contract if they fell on it. Enjoy!

Sincerely,
Rjack :)

--- "[I]f an extra element is required instead of or in addition
to the acts of reproduction, performance, distribution or display
in order to constitute a state-created cause of action, there is
no preemption, provided that the extra element changes the nature
of the action so that it is qualitatively different from a copyright
infringement claim." Stromback v. New Line Cinema, 384 F.3d 283
(United States Court Of Appeals for the Sixth Circuit 2004) ---




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