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Re: Running modified GPL software on a server

From: Alexander Terekhov
Subject: Re: Running modified GPL software on a server
Date: Tue, 31 Jan 2006 13:21:47 +0100

David Kastrup wrote:
> "lawfully made", "dispose of", "possession".  It is clear that this
> applies to physical copies acquired in an exchange of interest with
> the copyright holder, not to things you duplicated yourself.  For
> those copies, your rights are restricted by the license.  The GPL
> allows you distributing such copies _under_ _the_ _GPL_, _including_
> the source code (or rights to it).  Copyright law does not permit you
> to do any distribution of them without license.

Hey dak, Lee Hollaar the author of (I mean his
treatise, not the Foreword written by the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee)
told you several times in the past that your understanding of 
"first sale" is totally wrong. Here's what Lee Hollar who worked 
with the Chief Judge and the Chief Intellectual Property Counsel to 
the Senate Judiciary Committee on Internet, copyright, and patent 
issues as a Committee Fellow had to say about the GNU legal nonsense 
version 3 (note that most of it applies to GNU legal nonsense 
version 2 as well).

comment 388: Not a correct statement of copyright law
Regarding the text: However, nothing else grants you permission to
propagate or modify the Program or any covered works.
In section: gpl3.notacontract.p0.s3

Submitted by: hollaar

This is not a correct statement of copyright law, at least in the
United States. With respect to "propagate", it is likely a tautology
because of the defintion of "propagate" covering only things "that
require permission under applicable copyright law". But for "modify",
17 U.S.C. 117 permits the "owner of a copy of a computer program" to
make an "adaptation" in particular circumstances, and makes it clear
that making that adaptation does not "infringe copyright if you do not
accept this License." It also does not seem to recognize the "first
sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy "without the authority of the copyright owner".
Perhaps the interplay between the definition of "propagate" and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.
noted by hollaar

comment 389: Not a correct statement
Regarding the text: You may not propagate, modify or sublicense the
Program except as expressly provided under this License.
In section: gpl3.termination.p0.s1
Submitted by: hollaar

As I noted in more detail in my comments on Paragraph 9, this is not
an accurate statement. In the United States, 17 U.S.C. 109 ("first
sale") and 117 ("computer programs") allow the owner of a
lawfully-made copy to modify it in certain circumstances and to
redistribute it without permission of the copyright owner.
noted by hollaar

comment 390: Permission may not be required for use
Regarding the text: which means permission for use
In section: gpl3.licensecompat.p6.s1
Submitted by: hollaar

In the United States, at least, permission may not be required to use
a computer program if the user is the lawful owner of a copy. See 17
U.S.C. 117. United States copyright law does not give the copyright
owner a right to control use (although the DMCA does provide sort of
an access right if the information is protected by DRM, see 17 U.S.C.
1201(a), which does not apply here because of the anti-DRM language).
Even if you regard the "use" of the computer program as a
"reproduction" because it is being copied into memory (see MAI v.
Peak,, that
reproduction is specifically allowed by 17 U.S.C. 117 for the lawful
owner of the copy of the computer program.
noted by hollaar

comment 570: Just saying it doesn't make it so
Regarding the text: No covered work constitutes part of an effective
technological protection measure
In section: gpl3.drm.p1.s1
Submitted by: hollaar

A covered work will be "part of an effective technological protection
measure" (a term that mimics the DMCA "technological measure that
effectively controls access to a work", much like "derived from"
mimics "derivative work") based on what it does, not what you say. For
example, you can't exempt yourself from patent law by simply stating
that the "covered work is not a process, machine, manufacture, or
composition of matter" (the classes of patentable things in the United
noted by hollaar


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