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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 13:55:08 +0100

For the sake of nailing stupid dak once again...

David Kastrup wrote:
> Alexander Terekhov <> writes:
> > John Hasler wrote:
> > [...]
> >> No.  You are only required to give copies of the source to those you give
> >> copies of the binaries to.
> >
> > 17 USC 109 disagrees. The owner of a lawfully made copy is ENTITLED,
> > dispose of the possession of that copy.
> "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.  ["the 
> license"]

HOUSE REPORT NO. 94-1476 (about 109): "any resale of an illegally 
''pirated'' phonorecord would be an infringement, but the 
disposition of a phonorecord legally made under the compulsory 
licensing provisions of section 115 would not."

DMCA Section 104 Report: (ignoring Red Hat's "concerns" orticulated 
by Red Hat attorneys during testimony***)

"There is no dispute that section 109 applies to works in digital
 form. Physical copies of works in a digital format, such as CDs or
 DVDs, are subject to section 109 in the same way as physical
 copies in analog form. Similarly, a lawfully made tangible copy
 of a digitally downloaded work, such as a work downloaded to a
 floppy disk, Zip™ disk, or CD-RW, is clearly subject to section

***) < quotes from dmca/sec-104-report-vol-<2|3>.pdf >

Red Hat, Inc.:

  Let me just clarify that I don't think anyone today intends to
  impact our licensing practices. I haven't seen anything in the
  comments, nor have I heard anything today that makes me think
  someone does have that intention. What we're concerned about
  are unintended consequences of any amendments to Section 109.
  The primary difference between digital and nondigital products
  with respect to Section 109 is that the former are frequently
  licensed. ... product is also available for free downloaded
  from the Internet without the printed documentation, without
  the box, and without the installation service. Many open source
  and free software products also embody the concept of copyleft.
  ... We are asking that amendments not be recommended that would
  jeopardize the ability of open source and free software
  licensor to require [blah blah]

Time Warner, Inc.:

  We note that the initial downloading of a copy, from an
  authorized source to a purchaser's computer, can result in
  lawful ownership of a copy stored in a tangible medium.

Library Associations:

  First, as conceded by Time Warner, digital transmissions can
  result in the fixation of a tangible copy. By intentionally
  engaging in digital transmissions with the awareness that a
  tangible copy is made on the recipient's computer, copyright
  owners are indeed transferring ownership of a copy of the work
  to lawful recipients. Second, the position advanced by Time
  Warner and the Copyright Industry Organizations is premised
  on a formalistic reading of a particular codification of the
  first sale doctrine. When technological change renders the
  literal meaning of a statutory provision ambiguous, that
  provision "must be construed in light of its basic purpose"
  and "should not be so narrowly construed as to permit evasion
  because of changing habits due to new inventions and
  discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S.
  151, 156-158 (1975). The basic purpose of the first sale
  doctrine is to facilitate the continued flow of property
  throughout society.


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