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

[David Kastrup]

"amicus_curious" <ACDC@sti.net> writes:

> "Andrew Halliwell" <spike1@ponder.sky.com> wrote in message
> gkt066-8q6.ln1@ponder.sky.com">news:gkt066-8q6.ln1@ponder.sky.com...
>
>> If they don't agree with the GPL and refuse to accept its terms they
>> have no right to distribute, and as they're not distributing the
>> source that means they are in violation from the start.
>>
> They are permitted under 17 USC 109.  The GPL cannot bind them as it
> has not privity for Company B.  Once a copy is fixed and authorized,
> as due to the work of company A, it is free as in freedom.  No concern
> for Messrs Stallman or Moglen.

"Fair use" actually is not as universal as copyright itself.  In any
way, this particular loophole is not one that appears of much relevance
in practice: it requires two independently operating companies without a
common purpose.

If I fire a bullet at somebody, I can't excuse myself by claiming that I
only fired the bullet, but inertia was responsible for it reaching the
target and I am not responsible for inertia.

In a similar vein, if there is just one purpose behind a two-company
construct, then the judicial evaluation will take this into account.

So it turns out that nobody really wants to go there.  Which is almost
as good as there being no way to go there.

>> Remember, GPL is a permissive license. Standard copyright law holds
>> sway whenever the GPL is not in action. And they are illegally
>> shipping pirated software as they have absolutely no permission to
>> distribute it.
>>
> 17 USC 109 is standard copyright law and it indeed holds sway here. 

It is U.S. specific law, whereas copyright itself, covered by the Berne
convention, is more globally relevant.  But that is a minor point.  The
main point is that judges tend to collapse loophole reasoning if nothing
except wordsmithing seems to be involved.

-- 
David Kastrup