Re: "GPL requirement could have a chilling effect on derivative distros"

[David Kastrup]

Alexander Terekhov <terekhov@web.de> writes:

> David Kastrup wrote:
> [...]
>> But there are no consensual agreements in case of the GPL because the
>> consent of the recipient is never actually elicited.
>> 
>>   5. You are not required to accept this License, since you have not
>> signed it.  However, nothing else grants you permission to modify or
>> distribute the Program or its derivative works.  These actions are
>> prohibited by law if you do not accept this License.  Therefore, by
>> modifying or distributing the Program (or any work based on the
>> Program), you indicate your acceptance of this License to do so, and
>> all its terms and conditions for copying, distributing or modifying
>> the Program or works based on it.
>
> Sigh. To quote Hollaar 
> (http://digital-law-online.info/lpdi1.0/treatise2.html) once again,
>
> http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
>
> -----
> In article <barmar-6E37FC.18034631072...@comcast.dca.giganews.com> Barry 
> Margolin <bar...@alum.mit.edu> writes: 
> [Presumably quoting from the GPL ...]
>
>>  5. You are not required to accept this License, since you have not
>>signed it.  However, nothing else grants you permission to modify or
>>distribute the Program or its derivative works.  These actions are
>>prohibited by law if you do not accept this License.
>
> Just because the GPL states something doesn't make it so.

Just because Hollaar states something doesn't make it so.

> In particular, there are a couple of mistatements of the law there.

Well, the law is a bit more in flux rather than the GPL.

> The first is that "nothing else grants you permission to modify ...
> the Program."
>
> 17 USC 117(a) DOES grant that permission in a special, but important
> instance:
>        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 ...
>
> There is nothing in the GPL that says that a person is not the "owner
> of a copy" of the program.

There is nothing in a carrot that says that a person is not the "owner
of the carrot".  Establishing ownership is a separate process.  The
license defines the rights granted to somebody who has established
himself as the owner of a copy.

> So, as long as the adaptation (modification) is "an essential step
> in the utilization of the computer program in conjunction with a
> machine" it is permitted without the GPL.

It is actually a minor point since it only concerns what I have to do
to get a copy running on my own machine, not on somebody else's.  It
would become interesting where some company buys a copy of GPLed
software and then engages an external expert to get it to run.  The
expert does a bunch of ugly hacks unsuitable for decent company and
finally produces binaries.  The company later demands that the expert
hand over the source of the ugly hacks (which were not part of the
contract) and the expert refuses because his professional confidence
does not allow for that.

In _this_ scenario, where the expert acts as an agent for doing the
utilization, the GPL will not be binding to the expert as he is not
the party having licensed the software.  The company will be allowed
to use the software made to run in this way, but it will have to
refrain from redistributing it, not being able to meet the required
conditions.

> So, a more accurate statement would be:
>     However, nothing else grants you permission to modify AND
>     distribute the Program or its derivative works.  These actions are
>     prohibited by law if you do not accept this License.

Well, since you are talking about modification AND distribution,
Hollaar seems to shoot down your interpretation, anyway.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum