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Re: "GPL requirement could have a chilling effect on derivativedistros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivativedistros"
Date: Thu, 29 Jun 2006 19:35:50 +0200

Stefaan A Eeckels wrote:
> > "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
> >  109."
> But that doesn't clarify the status of a copy downloaded to a hard
> disk and then copied to CD-R(W). One cannot directly write to a CD
> type device, because the file has to be written to another file that
> contains the filesystem. Is this intermediate copy lawful?

Uhmm. I think that all those intermediate copies fall under 17 USC 117 
"archival purposes" (at least for programs ;-) ). Intermediate archival 
purposes. The transaction (start of downloading) conveys ownership. 
>From that moment, you have a title to a copy being downloaded. You have 
the right to create archival copies. Including intermediate archival 
copies. You create archival copies first (initial downloading) and then 
they are deleted. A bit of a stretch (but read the statute's wording 
carefully). Still perfectly reasonable. No? 

> It also doesn't answer the question about difference between the same
> file downloaded twice from a server, or downloaded once and then copied
> locally. There is no way that the resulting files themselves can be
> distinguished, so why would one be lawful and the other not?

Both are lawful if you're within the limit (if any) imposed on number 
of copies that can be downloaded. The license is implied. C'mon, let's 
save environment and bandwidth.

> > More quotes from dmca/sec-104-report-vol-<2|3>.pdf:
> >
> > 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.
> Notice "initial". This would imply that subsequent downloads do not
> create additional lawful copies.

That doesn't follow. See above.

> Downloading the same program 500 times with the purpose of distributing
> these copies (and which results in exactly the same situation as if one
> downloaded once and copied 499 times) would not result in 500 lawful
> copies, 

Sure it would. As for "downloaded once and copied 499 times" (in 
alternative) it's just implied license to save bandwidth. See above.


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