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Re: GPL and other licences

From: Alexander Terekhov
Subject: Re: GPL and other licences
Date: Thu, 02 Feb 2006 14:30:07 +0100

David Kastrup wrote:
> Alexander Terekhov <> 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.

"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.
... From the user's vantage point, SmartDownload could be analogized 
to a free neighborhood newspaper, readily obtained from a sidewalk 
box or supermarket counter without any exchange with a seller or 
vender. It is there for the taking. ... Defendants argue that this 
case resembles the situation where a party has failed to read a 
contract and is nevertheless bound by that contract. See, e.g., 
Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102, 1109, 63 
Cal.Rptr.2d 261 (Cal.Ct.App. 1997); Rowland v. PaineWebber Inc., 4 
Cal.App.4th 279, 287, 6 Cal.Rptr.2d 20 (Cal.Ct.App. 1992). This 
argument misses the point. The question before me is whether the 
parties have first bound themselves to the contract. If they have 
unequivocally agreed to be bound, the contract is enforceable 
whether or not they have read its terms."

Under your silly GNUtian logic, plaintiffs are either IP thieves or 
must be bound by the licensing provisions (including arbitration 
clause in Netscape’s license). Yet AOL/Netscape didn't countersue 
for copyright infringement and instead agreed to quite draconian 
settlement. How come? 


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