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Re: Circumventing the GPL

From: Alexander Terekhov
Subject: Re: Circumventing the GPL
Date: Thu, 24 Jul 2008 00:17:33 +0200

Exhaustion and the GPL

Some years ago I came across a guy Alexander Terekhov who worked then
for IBM and had outspoken views about the viability of the GPL.

If I understood it, his opinion was that the license terms of the GPL
would not survive resale, due to the well established “first sale
doctrine” and its EU equivalent “exhaustion”.  It basically means that
the copyright holder cannot stop you reselling your software, and that
the license terms will not apply to the guy receiving it.

I tried to understand this further, but Alexander was not always easy
for me to comprehend and had then a habit of linking to his own posts
elsewhere to bolster his position, leading to a kind of echo chamber of
Terekhovs all nodding vigorously at each other.  He also back then and
evidently more recently too explained legal decisions that did not fit
his understanding by calling the Judges in question “morons”, etc.  Well
the forum I met him at had a very high trolling quotient so it just
joined the rest of the anti-GPL sentiment there for me in the end and I
ignored it.

GPL is a license too

But I was reminded of this last night when I read about a recent
decision against Autodesk which is being widely seen as a victory for
Joe Softwarebuyer.  From the Patry blog post link above:

...many software companies have taken the position that they can convey
the copy to the customer in an over-the-counter transaction for a
one-time payment, but describe that transaction as a license; as a
license, the first sale doctrine doesn’t apply, meaning copyright owners
can prevent further distribution of the copy...

Doesn’t this vindicate Alexander’s position?  How can GPL terms stick
past resale if Autodesk EULA ones don’t?  Nothing stops “built-in” or
“automated” resale to clense software of any licensing restriction.

A lot of people seem to be happy about the paid-for world being freed
from license conditions, are they going to be happy if it turns out that
everyone is also freed from GPL conditions?

Civil infringement and Punishment

What effect would this have on contribution I wonder.  It seems to me
the real-world advantages from being active in a project by contributing
will still apply.  But it will enable private proprietary forking for
products, the kind of thing that Harald Welte’s has
had success attacking and punishing to date.  Contributors will see
their work used in commercial products without the changes being open.

But the BSD folks seem to survive this outrage without it removing their
motivation.  And from time spent looking at music licensing over the
years, I kind of recognize an element of proprietary vindictiveness in
gpl-violations… of course the member companies hiding behind the RIAA
attacks are also “perfectly within their rights” to embark on much worse
vindictive destruction, but they are not entirely dissimilar and that
always bothered me.

Playing ball or going home?

Well, this decision is subject to appeal, will only apply to the
jurisdiction of that court, etc, so the sky didn’t fall in already.  But
there is quite a bit of harmonization of copyright law thanks to the
insistence of rich rightholder companies mainly from the US side.  But
if this is upheld, it may come to contaminate most Western countries and
turn GPL terms in unenforcable noise — the choices would be in effect
public domain or closed.

I guess some people will go closed rather than have their work
exploited, but I expect most people will just continue on, and
contributions will continue to come perfectly fine.  The advantages from
being a visible contributor and taking upstream directly are still going
to apply, so will the bitrot that happens to any additional code put on
top and maintained privately.

Too mature to care?

Maybe now we reached a point that the social, financial, engineering and
public advantages from cooperation are ingrained enough that we don’t
need a license to protect them anyway?  But I read this and I feel a
sinking feeling about the naivity of such a proposal.

Tags: autodesk, exhaustion, first sale doctrone, gpl

This entry was posted on Friday, May 23rd, 2008 at 10:55 am and is filed
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(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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