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Re: The GPL means what you want it to mean


From: Rjack
Subject: Re: The GPL means what you want it to mean
Date: Mon, 06 Apr 2009 09:19:48 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

Alan Mackenzie wrote:
In gnu.misc.discuss Thufir Hawat <address@hidden> wrote:

It[the GPL]'s just as much a contract as any other EULA.

The GPL isn't a EULA, except perhaps the tiny part of it that says
"you may run this program unconditionally". The concept of "end user" is absent in free software licensing, and the GPL goes to considerable lengths to ensure that nobody is relegated to the status of an "end user", except by choice.

The GPL is a license for distributing and changing software, not for using it.


Your remark concerning "use" is interesting. There is a subtle
distinction between "use" in the context of patents and that of
copyrights. The patent grant states:

"35 U.S.C. 154(a)(1) Every patent shall contain a short title of the
invention and a grant to the patentee, his heirs or assigns, of the
right to exclude others from making, using, offering for sale, or
selling the invention throughout the United States or importing the
invention into the United States, and, if the invention is a process,
of the right to exclude others from using, offering for sale or
selling throughout the United States, or importing into the United
States, products made by that process, referring to the specification
for the particulars thereof."

Here "using" is a *broad* grant concerning *any* use of the invention
that falls within the limits of the patent specification. This defines
"scope of use" in patent cases that gives rise to infringement.

The Supreme Court has stated:
"The owner of a patent may assign it to another and convey (1) the
exclusive right to make, use, and vend the invention throughout the
United States; or (2) an undivided part or share of that exclusive
right; or (3) the exclusive right under the patent within and through
a specific part of the United States. . . Conveying less than title
to the patent or part of it, the patentee may grant a license to make,
use, and vend articles under the specifications of his patent for any
royalty, or upon any condition the performance of which is reasonably
within the reward which the patentee by the grant of the patent I
entitled to secure."; United States v. General Electric Co., 272 U.S.
476 (1926).

The crucial idea is that the restriction must remain within the scope
of the enumerated right: "[Is] reasonably within the reward which the
patentee by the grant of the patent is entitled to secure." (supra).
Therefore in patent cases "use" is a broad "in rem" right giving rise
to infringement that violates 35 U.S.C. 154.

In copyright matters there is no broad right to "use" a work.
In copyright "scope of use" must *directly* limit one of the
the *specific* enumerated rights in listed in 17 U.S.C. 106:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.

So unlike patent cases, in most (not all) copyright suits alleging
"use" violation it is a matter of breach of contract and not
copyright infringement.

Sincerely,
Rjack :)







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