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Re: "GPL requirement could have a chilling effect on derivative distros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Thu, 29 Jun 2006 02:42:56 +0200

David Kastrup wrote:
> > Another legal persons makes copies. And he is in total compliance.
> You mean, he licenses it to you as a whole under the GPL, as provided
> in
>   2. You may modify your copy or copies of the Program or any portion
> of it, thus forming a work based on the Program, and copy and
> distribute such modifications or work under the terms of Section 1
> above, provided that you also meet all of these conditions:
>     a) You must cause the modified files to carry prominent notices
>     stating that you changed the files and the date of any change.
>     b) You must cause any work that you distribute or publish, that in
>     whole or in part contains or is derived from the Program or any
>     part thereof, to be licensed as a whole at no charge to all third
>     parties under the terms of this License.
> [...]
> So he licensed the work _under_ _the_ _GPL_ to you?  Fine.

Nice try! But by this impeccable GNUtian logic, a distributor just can't 
distribute the GPL'd work until he has forced "all third parties" (all 
legal persons on this planet except his licensors) assent to the GPL... 
in direct contradiction to "You are not required to accept this License"
from Section 5. How nice.

The grant of IP rights to work IS available to me (and all other "third 
parties" to whom he distributes copies) under the GPL, stupid. But all I 
need is a copy and I don't assent to the GPL. To quote the GPLv3 (note 
that the Rationale says "Section 9[5] revises the corresponding section 
[5] in GPLv2 in various ways to make the provision clearer."): "You are 
not required to accept this License in order to receive a copy of the 
Program." That's all on public record, stupid dak.

> > I just distribute those lawfully made copies (he doesn't impose any
> > restrictions on me because the GPL doesn't require to propagate the
> > contract along with each copy and make me assent to the
> > GPL).
> What happened to "under the terms of this license"?  Well, it is
> nothing we really need to worry about too much, agreed, since those
> terms include
>   5. You are not required to accept this License, since you have not
> signed it.
> > Without sources,
> Uh, no.  You can't change the stuff and distribute it in changed form.
> You received it with source (and license), and if you want to insist

Downloads aside for a moment, suppose it was a written offer or just
another material object (i.e. "a copy" per 17 USC 101) containing 

> on just copyright exhaustion, you have to pass it on in this state.

I pass a copy with binary only stuff that I received from him in 
virgin state without any modifications.$FILE/CV00-04161DDP.pdf

"By distributing the individual pieces of Adobe Collections, Adobe 
contends that SoftMan is infringing Adobe’s copyright in these 
products and violating the terms of Adobe’s licenses. While SoftMan 
agrees that it is breaking apart various Adobe Collections and 
distributing the individual pieces of them as single products, 
SoftMan claims that it is entitled to distribute Adobe software in 
this manner. There is no direct contractual relationship between 
Adobe and SoftMan.


<quote source=>

Adobe fails to offer a compelling rationale for how SoftMan
becomes subject to Adobe’s licenses ... Adobe claims that the 
EULA is enforceable against SoftMan because the boxes containing 
Adobe software (including Collections) clearly indicate that use 
is subject to the consumer’s agreement to the terms contained in 
EULA inside. See, e.g., ProCD, 86 F.3d at 1451. ... The Adobe 
Collections boxes state: “NOTICE TO USERS: This product is offered 
subject to the license agreement included with the media.” (Navarro 
Decl. at p. 2.) However, the existence of this notice on the box 
cannot bind SoftMan.

One significant effect of § 109(a) is to limit the exclusive right
to distribute copies to their first voluntary disposition, and thus
negate copyright owner control over further or “downstream” transfer
to a third party. Quality King Distrib. v. L’Anza Research Int’l,
Inc., 523 U.S. 135, 142-44 (1998).


Adobe argues that the first sale doctrine does not apply because
Adobe does not sell or authorize any sale of its software. Adobe
characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.


the Court has determined that SoftMan is not bound by the EULA 
because there was no assent to its terms."


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