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Re: Artifex v. Diebold: "The GPL is non-commercial!"

From: Alexander Terekhov
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Fri, 06 Feb 2009 00:14:08 +0100

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > I still don't get your point, Hyman.
> If you wish to make a copy of GPLed code and convey it,
> you must abide by the restrictions of the GPL, including
> when you make such a copy by downloading it.

Note that the Copyright Act doesn't define a (compound) right to "copy
and convey", instead it defines separate rights to reproduce and
distribute whereby severely limiting the exclusive right to distribute
by 17 USC 109. Basically, 17 USC 109 says that 17 USC 106 (3) is meant
to punish pirates distributing (while not engaging in reproduction of)
copies unlawfully made in the same way as pirates making unlawful copies
(but not necessarily distributing those). As for your "must", see

"Netscape's SmartDownload, ... allows a user to download and use 
the software without taking any action that plainly manifests assent 
to the terms of the associated license ... Netscape argues that the 
mere act of downloading indicates assent. However, downloading is
hardly an unambiguous indication of assent. The primary purpose of 
downloading is to obtain a product, not to assent to an agreement. 
... Netscape's failure to require users of SmartDownload to indicate 
assent to its license as a precondition to downloading and using its 
software is fatal to its argument that a contract has been formed.
... From the user's vantage point, SmartDownload could be analogized 
to a free neighborhood newspaper, readily obtained from a sidewalk 
box or supermarket counter without any exchange with a seller or 
vender. It is there for the taking. ... Defendants argue that this 
case resembles the situation where a party has failed to read a 
contract and is nevertheless bound by that contract. See, e.g., 
Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102, 1109, 63 
Cal.Rptr.2d 261 (Cal.Ct.App. 1997); Rowland v. PaineWebber Inc., 4 
Cal.App.4th 279, 287, 6 Cal.Rptr.2d 20 (Cal.Ct.App. 1992). This 
argument misses the point. The question before me is whether the 
parties have first bound themselves to the contract. If they have 
unequivocally agreed to be bound, the contract is enforceable 
whether or not they have read its terms."

Under your silly GNUtian logic, plaintiffs are either IP thieves or 
must be bound by the licensing provisions (including arbitration 
clause in Netscape's license). Yet AOL/Netscape didn't countersue 
for copyright infringement and instead agreed to quite draconian 
settlement. How come? 


(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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