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

From: Stefaan A Eeckels
Subject: Re: "GPL requirement could have a chilling effect on derivativedistros"
Date: Thu, 29 Jun 2006 21:13:33 +0200

On Thu, 29 Jun 2006 19:35:50 +0200
Alexander Terekhov <> wrote:

> 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? 

I don't think so. This is one of the areas where clear definitions are
lacking, and where some clarification by the courts (or the legislator)
would be appropriate. 

You are effectively stretching the meaning of "archival copy", which is
meant to be something that is made to protect against the loss of your
property, not to facilitate making CD-Rs. Your interpretation might
seem reasonable to you, but the point of the court system is that your
and my interpretation holds no weight. We can of course decide to act
according to our understanding of the law, but more often than not the
courts do not use the same interpretation as laypeople.

> > 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.

Saving bandwidth and trees is not what the Copyright Statutes are
concerned with. Where I could find some sympathy for the preceding
interpretation, here you're bordering on the risible. 

The result of this interpretation is that the copyright holder loses
if not the the right, then certainly the ability to control the copying
of her work. This is akin to tax evasion tricks, and in such cases
courts tend to be quite unsympathetic. I'd venture to say they would be
similarly unsympathetic to your interpretation.

> > > 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.

In the case of the purchase of a copy, it should be rather obvious that
paying for a single copy does not entitle you to the downloading of as
many copies as your bandwidth permits, even if the server doesn't stop
you from doing so. If you would then start to give those additional
copies away, you'd certainly be violating copyright. 
> [...]
> > 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.

Implied license means that the copyright holder can be deemed to have
authorised certain copies when they are part of the intended use of the
copyrighted material (e.g. viewing a web page makes a copy in the
browser cache). In this case, the copyright holder did not intend to
offer a downloadable version of her software so that you could
circumvent the stated purpose of the license. 

Take care,

Stefaan A Eeckels
"Shun those who say we have eyes in order to see, and instead say we
 see because we happen to have eyes." 

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