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Re: GPL and other licences


From: David Kastrup
Subject: Re: GPL and other licences
Date: Thu, 02 Feb 2006 14:38:10 +0100
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Alexander Terekhov <address@hidden> writes:

> David Kastrup wrote:
>> 
>> Alexander Terekhov <address@hidden> writes:
>> 
>> > Rui Miguel Silva Seabra wrote:
>> >>
>> >> On Wed, 2006-02-01 at 11:43 +0100, Alexander Terekhov wrote:
>> >> > Barry Margolin wrote:
>> >> > [...]
>> >> > > But that's not really a good analogy.  Combining two
>> >> > > programs is not just making references, you actually merge
>> >> > > parts of one program into a copy of the other.
>> >> >
>> >> > What do you mean by "merge". They remain as two separate
>> >> > computer programs (or parts thereof, if you like) under
>> >> > copyright law. No protected expression was
>> >> > transformed/modified forming a derivative work. Combined
>> >> > executable is just an aggregation of many computer program
>> >> > works under copyright law. If you insist I can supply you with
>> >> > maps that will allow you to extract all those distinct
>> >> > components.
>> >>
>> >> You can't include someone else's book into your own book unless
>> >> they allow so.
>> >
>> > One can download a copy of GPL'd work (without any "I accept")
>> > directly to a compilation on a tangible medium. In source code or
>> > object code form (both forms are wildly available).
>> 
>> The mere presence of duplicable material somewhere does not give
>> you any automatic right to create copies of it.
>> 
>> If somebody leaves his door open, that does not mean that this
>> gives me the right to go inside and take or copy whatever I wish.
>
> Go tell this to Honorable ALVIN K. HELLERSTEIN, U.S.D.J.

No need to:

> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
>
> "Netscape's SmartDownload, ... allows a user to download and use
> the software without taking any action that plainly manifests assent
> to the terms of the associated license ... Netscape argues that the
> mere act of downloading indicates assent. However, downloading is
> hardly an unambiguous indication of assent. The primary purpose of
> downloading is to obtain a product, not to assent to an agreement.
> ... Netscape's failure to require users of SmartDownload to
> indicate assent to its license as a precondition to downloading and
> using its software is fatal to its argument that a contract has been
> formed.

"Contract".  See?  The GPL explicitly states:

      5. You are not required to accept this License, since you have not
    signed it.  However, nothing else grants you permission to modify or
    distribute the Program or its derivative works.  These actions are
    prohibited by law if you do not accept this License.  Therefore, by
    modifying or distributing the Program (or any work based on the
    Program), you indicate your acceptance of this License to do so, and
    all its terms and conditions for copying, distributing or modifying
    the Program or works based on it.

In the court case you cited, the judge decided that if a copyright
holder makes something available for download without further
technical measures to announce its licence, then no contract is formed
and the recipient is merely bound by copyright law if he decides to
ignore the license.

But copyright law does not allow you redistribution of copies.  The
GPL grants you additional rights.  You are free not to accept those
additional rights.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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