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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 
if I'm wrong.


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 state’s law and a lease under
another’s. 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 Act’s “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.



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