Re: EASTERBROOK's "quick look" on the GPL and Wallace's claim

[Alexander Terekhov]

Richard Tobin wrote:
> 
> In article <4554EE8E.7A2A09BD@web.de>,
> Alexander "Plonker" Terekhov  <terekhov@web.de> wrote:
> 
> >> > To surrender something you must first have it.  So when was it that they
> >> > had the right to distribute the derivative work for a charge?  Before or
> >> > after they accepted the GPL?
> 
> [...]
> 
> >One just can't charge *for* a derivative work before it is created
> >(futures aside for a moment :-) ). A copyright arises as soon as
> >(derivative) work is created (lawfully). 17 USC 117 allows creation
> >of derivative works (adaptations) without a license.
> 
> Typical Terekhov twisting.  I ask when you have a right to distribute,
> and you reply that you have a right to create.

Under US Code Title 17, an owner of a copy "lawfully made" has a right
to distribute it "WITHOUT THE AUTHORITY OF THE COPYRIGHT OWNER". 17 USC 
109. The GPL requires to surrender that right as well when it talks 
about "offers" to provide source code, etc. To quote Lee Hollaar,

-------
As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109.  (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")

The heart of the provision is its first sentence:
     Notwithstanding the provisions of section 106(3), the owner of a
     particular copy or phonorecord lawfully made under this title, or
     any person authorized by such owner, is entitled, without the
     authority of the copyright owner, to sell or otherwise dispose
     of the possession of that copy or phonorecord.

But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.

But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

Note that the GPL does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works."  It also ignores Section 117
when, which gives "the owner of a copy of a computer program" the
right to "make or authorize the making of another copy OR ADAPTATION
of that computer program" if it is "an essential step in the
utilization of the computer program in conjunction with a machine".

As for Eben Moglen's assertion that "Licenses are not contracts" in
http://www.gnu.org/philosophy/enforcing-gpl.html (previously cited),
he offers little justification for the statement:
    the work's user is obliged to remain within the bounds of the
    license not because she voluntarily promised, but because she
    doesn't have any right to act at all except as the license permits.

In light of Sections 109 and 117 (and possibly other exceptions),
that statement is wrong with respect to United States copyright law.
Just look at the wording of Section 109 -- "is entitled, WITHOUT THE
AUTHORITY OF THE COPYRIGHT OWNER". 
------

regards,
alexander.