Re: Circumventing the GPL

[Alexander Terekhov]

Tim Smith wrote:
> 
> In article <q00ik.6789$gg.3271@fe105.usenetserver.com>,
>  Hyman Rosen <hyrosen@mail.com> wrote:
> > Tim Smith wrote:
> > > 1. Acquire a lawful copy of a GPL binary.  Doesn't matter how--download
> > > it from somewhere, compile it from source, whatever.
> > > 2. Make copies of the binary.  GPL says this is OK.
> > > 3. Sell or give away those copies.  They are lawfully made copies, and
> > > the person owns those particular copies, so this seems to fall under
> > > first sale.
> >
> > Nope. GPL3p2 says
> >      "You may make, run and propagate covered works that you
> >       do not convey, without conditions so long as your license
> >       otherwise remains in force."
> 
> Ah, but what about GPLv3 section 0, which includes this:
> 
>    To ³propagate² a work means to do anything with it that, without
>    permission, would make you directly or secondarily liable for
>    infringement under applicable copyright law, except executing it on
>    a computer or modifying a private copy. Propagation includes
>    copying, distribution (with or without modification), making
>    available to the public, and in some countries other activities as
>    well.
> 
> If you are distributing your copies under the protection of first sale,
> then that is not propagation, as defined in the first sentence of that
> paragraph.  The second paragraph says propagation includes distribution,
> but the question then arises is that meant to be independent of the
> first sentence, or is it illustrative?  That is, does it only include
> distribution that would make you liable under copyright law?

Professor Lee Hollaar*** (who worked on Internet, copyright, and patent
issues as a U.S. Senate Judiciary Committee Fellow) has commented
regarding GPLv3 wording (and apparently his comments were simply
dismissed from consideration by RMS Eben & Co.) on
http://gplv3.fsf.org/comments system:

-----
comment 388: Not a correct statement of copyright law

Regarding the text: However, nothing else grants you permission to
propagate or modify the Program or any covered works.

In section: gpl3.notacontract.p0.s3

Submitted by: hollaar

comments:

This is not a correct statement of copyright law, at least in the
United States. With respect to "propagate", it is likely a tautology
because of the defintion of "propagate" covering only things "that
require permission under applicable copyright law". But for "modify",
17 U.S.C. 117 permits the "owner of a copy of a computer program" to
make an "adaptation" in particular circumstances, and makes it clear
that making that adaptation does not "infringe copyright if you do not
accept this License." It also does not seem to recognize the "first
sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy "without the authority of the copyright owner".
Perhaps the interplay between the definition of "propagate" and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.

noted by hollaar


comment 389: Not a correct statement

Regarding the text: You may not propagate, modify or sublicense the
Program except as expressly provided under this License.

In section: gpl3.termination.p0.s1

Submitted by: hollaar

comments:

As I noted in more detail in my comments on Paragraph 9 [read: 0 as in
gpl3.notacontract.p0], this is not an accurate statement. In the United
States, 17 U.S.C. 109 ("first sale") and 117 ("computer programs") allow
the owner of a lawfully-made copy to modify it in certain circumstances
and to redistribute it without permission of the copyright owner.

noted by hollaar
-----

***) http://digital-law-online.info/lpdi1.0/treatise2.html

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(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.)