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Re: GPL and other licences
From: |
Alexander Terekhov |
Subject: |
Re: GPL and other licences |
Date: |
Wed, 01 Feb 2006 12:43:46 +0100 |
Isaac wrote:
[...]
> No it does not quite boil down to that. What it boils down to is whether
> the GPL grants permission to so mix the software at home as long as
> you do not distribute the combination.
The GPL (or any other license) just can't grant something that
doesn't fall under exclusive rights of copyright owners. It can
restrict something (subject to contract existence and regulations
concerning invalid contract terms), but not grant. An "owner" of
a copy can copy and adapt (modify) under 17 USC 117. No grant is
required. And even with existence of a contract (and rather silly
language "no title"/"is licensed, not sold"), 17 USC 117 bars
cause of action for copyright infringement, says UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT. Feel free to correct me
if I'm wrong.
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
</quote>
Several considerations militate against interpreting § 117(a) to
require formal title in a program copy. First, whether a party
possesses formal title will frequently be a matter of state law.
See 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §
8.08[B][1] (stating that copy ownership arises presumably under
state law). The result would be to undermine some of the
uniformity achieved by the Copyright Act. The same transaction
might be deemed a sale under one states law and a lease under
anothers. If § 117(a) required formal title, two software
users, engaged in substantively identical transactions might
find that one is liable for copyright infringement while the
other is protected by § 117(a), depending solely on the state in
which the conduct occurred. Such a result would contradict the
Copyright Acts express objective of creating national, uniform
copyright law by broadly preempting state statutory and common-
law copyright regulation. Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 740 (1989); see also 17 U.S.C. § 301(a).
Second, it seems anomalous for a user whose degree of ownership
of a copy is so complete that he may lawfully use it and keep
it forever, or if so disposed, throw it in the trash, to be
nonetheless unauthorized to fix it when it develops a bug, or
to make an archival copy as backup security.
We conclude for these reasons that formal title in a program
copy is not an absolute prerequisite to qualifying for §
117(a)s affirmative defense. Instead, courts should inquire
into whether the party exercises sufficient incidents of
ownership over a copy of the program to be sensibly considered
the owner of the copy for purposes of § 117(a). The presence or
absence of formal title may of course be a factor in this
inquiry, but the absence of formal title may be outweighed by
evidence that the possessor of the copy enjoys sufficiently
broad rights over it to be sensibly considered its owner.
</quote>
regards,
alexander.
- Re: GPL and other licences, (continued)
- Re: GPL and other licences, Rui Miguel Silva Seabra, 2006/02/02
- Message not available
- Re: GPL and other licences, Alexander Terekhov, 2006/02/02
- Re: GPL and other licences, Rui Miguel Silva Seabra, 2006/02/02
- Message not available
- Re: GPL and other licences, Alexander Terekhov, 2006/02/02
- Re: GPL and other licences, Rui Miguel Silva Seabra, 2006/02/03
- Message not available
- Re: GPL and other licences, Alexander Terekhov, 2006/02/03
- Re: GPL and other licences, Rui Miguel Silva Seabra, 2006/02/03
Re: GPL and other licences,
Alexander Terekhov <=
Re: GPL and other licences, Alfred M. Szmidt, 2006/02/01
Re: GPL and other licences, David Kastrup, 2006/02/01
- Re: GPL and other licences, Alfred M. Szmidt, 2006/02/01
- Re: GPL and other licences, David Kastrup, 2006/02/05
- Re: GPL and other licences, Alfred M. Szmidt, 2006/02/02
- Message not available
- Re: GPL and other licences, Stefaan A Eeckels, 2006/02/02
- Re: GPL and other licences, Alfred M. Szmidt, 2006/02/02
- Re: GPL and other licences, Alexander Terekhov, 2006/02/03
Re: GPL and other licences, Isaac, 2006/02/01