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

From: Stefaan A Eeckels
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Thu, 29 Jun 2006 14:25:49 +0200

On Thu, 29 Jun 2006 11:34:35 +0200 (CEST)
"Alfred M. Szmidt" <> wrote:

> Tim Smith <> wrote

> >      1. Party A makes a GPL'ed program available, on two CDs.  One
> >      has the program in binary form, and one has the source.
> >
> >      2. Party B obtains these CDs, and having no interest in the
> >      source code, gives the source CD away, or perhaps discards it.
> >
> >      3. Later, Party B no longer has a use for the program, so
> >      deletes all copies they have made of the binary CD, and then
> >      puts the binary CD up for sale.
> >
> >      4. Party C buys the binary CD.
> >
> >   Question: who, if any, is obligated to provide source to Party C
> >   (if Party C wants it)?
> >
> Party B.
> If B were selling a *modified* copy, or if B were making new copies
> and selling them, it would be different, but that's not the case
> here.
> Party B is distributing a verbatim copy, that it is or isn't a a new
> copy isn't relevant.

What is relevant is first sale. That is, the owner of a lawful copy has
the right to sell that copy. Thus, the sale can take place without
accepting the license. 

The problem with the current copyright statutes and GPLed software is
that the statutes were written before the arrival of the Internet. For
example, it is not clearly defined what the status is of 500 downloads
of the same file to one or more directories on one or more disks. 

For example, if I click 500 times on a "Download the.rpm" button, and as
a result have the files the.rpm, the(1).rpm, the(2).rpm ... the(500).rpm
on my hard disk, do I have 500 lawful copies, or just 1 lawful copy? In
other words, is the fact that the data comes from a remote system
(something that cannot be proved once the download is complete)
material to the legal status of the copy? What happens if copies 2 to
500 happen to come from a cache? 

If I transfer each file to a separate CD-R, am I making copies even if
I delete the original file on the disk? Assume that my intention was to
produce 500 CD-Rs, can I ignore the transition via the hard disk?
This is relevant even if a "direct" transfer from the server to the CD-R
would be possible, as behind the scenes a transient image of the file
will be written to disk, given the limitations of CD recording.

The statutes assimilate executing a program with making copies, thus it
would stand to reason that transient copies for the purpose of
transferring to a removable medium are copies, and because they are not
material to running the program, they would not fall under the relevant

In the absence of clear definitions, the interpretations of the courts
become crucial. 

Take care,

Stefaan A Eeckels
Q: If ignorance is bliss, why aren't there more happy people in the
world? A: Because they don't know they're ignorant.

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