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Re: The worst that can happen to GPLed code

From: Stefaan A Eeckels
Subject: Re: The worst that can happen to GPLed code
Date: Fri, 18 Jun 2004 13:54:50 +0200

On Fri, 18 Jun 2004 12:53:59 +0200
Alexander Terekhov <> wrote:

> Stefaan A Eeckels wrote:
> [...]
> > The point being, if one could do this (and I can't see why
> > there would be a difference between extracting a complete
> > file, or a function from a file from the tarball), extract
> > the contents of any legally obtained software work and use
> > them in one's own programs.
> Right. Read 
> The so-called "runtime exception" is unneeded.

as long as you, the author of the "aggregation"
download a copy of the library for each copy
you distribute, and extract what you want to
use from each and every download. At least that's 
the gist of your interpretation, I believe.

First sale doctrine is based on the idea that one
should not interfere with the owners right to do
with the copy as she pleases. This, however,
doesn't mean that the owner of the copy also has
rights to the IP it contains. You can take two books
you own, slice them in half, and combine the start 
of the first one with the end of the second, and
vice versa. (Or you could shred both of them and mix
the confetti, etc.) None of this gives you any rights
to the IP, and certainly not the right to photostat
the Frankensteined books.

Analysing what happens when you unpack a tarball 
to combine a selected file with a project of yours,
shows that one to several copies have to be made. 
For example, you download the gzipped tarball to
a floppy, giving you (for argument's sake) a first
sale copy. Let's stipulate that the expansion of 
the tarball doesn't make a copy (you use a pipe,
and hence the expanded file doesn't exist on a
relevant medium, but note that a file in memory
is considered a copy, and as you're not doing this
to run the program, it might already be copyright
infringement). To extract the file you're interested
in, you cannot but make a copy - there's no equivalent
to ripping a page out of a book, where the file would
disapear from the tarball the moment it appears all
by itself on the disk. You've just made a copy, and 
first sale no longer applies (remember that you can
do things to your copy, but cannot make copies).
Assembling the "aggregation" could be done by file
move operations, which we'll stipulate do not 
make a copies (though certain implementations or
the move to another medium might result in a copy).
Pakaging the "aggregation", on the other hand,
cannot be done unless you make a further copy. 
You could argue that an archiver that removes the
files it extracts from, or adds to, an archive
would be the equivalent of ripping pages out of a
book and glueing them together, but then you'd still
need to "rip" the file out of a freshly downloaded 
archive and add it to the "aggregation" for every copy
you distribute, to avoid making copies.

As obviously the objective of all of this would be
to sell binaries without source, compiling the "ripped"
file or code would create a derivative work, which you 
cannot do without accepting the GPL. 

Care to explain how you manage to avoid making copies
or derivative works from your first sale copy?

"What is stated clearly conceives easily."  -- Inspired sales droid

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