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Re: GPL traitor !

From: Hyman Rosen
Subject: Re: GPL traitor !
Date: Tue, 16 Jun 2009 10:55:34 -0400
User-agent: Thunderbird (Windows/20090302)

David Kastrup wrote:
But we are not talking about copying, but assembling.  The act of
creating a mere in-memory copy does not cause additional worries, as
this is the _intended_ use of the copy.  But dynamic linking is not mere
copying, it is _assembling_ the separate parts into a coherent whole
executable in a single memory space.

The GPL is a copyright license, granting additional permissions
on covered works beyond what is allowed by copyright law alone.
A program which when executed will invoke libraries dynamically
does not contain copies of those libraries. Therefore making
copies of that program and distributing them is not restricted
by the GPL. When that program is executed, it causes copies of
the dynamic libraries it uses to be loaded and "assembled". This
action is specifically declared non-infringing by US copyright law:
    § 117. Limitations on exclusive rights: Computer programs
    (a) Making of Additional Copy or Adaptation by Owner of Copy.
    — Notwithstanding the provisions of section 106, it is not an
    infringement for the owner of a copy of a computer program to
    make or authorize the making of another copy or adaptation of
    that computer program provided:
    (1) that such a new copy or adaptation is created as an essential
    step in the utilization of the computer program in conjunction
    with a machine and that it is used in no other manner

The person who runs the program is responsible for its execution.

You erroneously believe that the author of the program is responsible,
but that is irrelevant because the person running the program owns
the dynamic libraries on his computer and is _authorizing_ the copy
essential to the use of the program.

You erroneously believe that the author of the program is responsible
for an "assembly" of the program when the user executes it, but that
too is irrelevant because the law declares that an _adaptation_ of a
program essential for use is non-infringing.

You erroneously believe execution of the program results in a GPL
violation. The GPL itself tells you otherwise:
    You may make, run and propagate covered works that you do not
    convey, without conditions so long as your license otherwise
    remains in force.

The whole point is that delaying the time of assembling a working whole
and making an automatically invoked procedure for it does not suddenly
create a new legal situation or remove responsibilities.

The only "legal situation" involved is copyright. Copyright is
about copying, and the details of what is copied and when it is
copied are at the heart of copyright law. Your assertions that
the time and manner in which the program is "assembled" don't
matter are simply wrong. They matter very much. Copyright law is
about copying specific works. Copyright law is not about what
happens when a computer program runs (except to declare copies
made in that context non-infringing). Copyright law has no
concept of any sort of "equivalence of outcome" to decide if
infringement has taken place. To see if copyright violation has
occurred, you examine what is being copied.

> Does that make a demand-paged executable an aggregation of
independent parts?  Certainly not, since the program operates
> as a coherent whole in virtual memory space.

The operation of the program is irrelevant to copyright law.

If the executable program can be regarded as a collective work
which incorporates separately licensed works (which a statically
linked file certainly is) then permission to create and copy that
work must be obtained from the copyright holders of the elements.

A dynamically linked program does not contain such elements, and
it is nonsensical to claim that a work not containing other works
is bound by their copyrights.

Deciding whether a work is a collective work or a set of parts
is done on the thing which is copied and transmitted, not by
examining how a computer operates while executing it, because it
is the copying and distribution which is controlled by copyright

When the program is executed, any copies or adaptations made by
the program of copyrighted works which are essential to their use
is specifically declared to be non-infringing by US copyright law.

Those parts are separately present on the machine which will execute
the program, and any copying that occurs during the execution is
specifically declared non-infringing by US copyright law.

Copying, not linking.  Linking is not just copying.

US copyright law declares as non-infringing any copy or _adaptation_
necessary to use the work. Dynamic linking is adaptation. It is

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