More pain to plonked Miller and other FSF's lackeys. On 1/26/06, Alexander Terekhov <[EMAIL PROTECTED]> wrote: > Just to stress... > > On 1/26/06, Alexander Terekhov <[EMAIL PROTECTED]> wrote: > > On 1/26/06, Raul Miller <[EMAIL PROTECTED]> wrote: > > > On 1/26/06, Alexander Terekhov <[EMAIL PROTECTED]> wrote: > > > > On 1/26/06, Yorick Cool <[EMAIL PROTECTED]> wrote: > > > > [...] > > > > > And licensing software is not selling it. > > > > > > > > Yorick, Yorick. The courts disagree. > > > > > > And then quotes as proof a huge chunk of text which includes > > > the explanation: > > > > > > > A number of courts have held that the sale of software is the sale of > > > > a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. > > > > v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 > > > > F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, > > > > 1150 (6th Cir. 1991). It is well-settled that in determining whether a > > > > transaction is a sale, a lease, or a license, courts look to the > > > > economic realities of the exchange. > > > > > > In other words: when money changes hand in the sale of software, > > > it's fair to say that the person getting the software has been sold > > > a licensed copy of that software (at least, when the sale is legal). > > > > > > This shouldn't be very surprising. Many books get published under > > > an "all rights reserved" license, but the people who buy those > > > books are still allowed to turn around and transfer the copy to > > > someone else. > > > > > > A person could even say that the "economic realities of the > > > exchange" are different when no money moves from the recipient > > > of the software to the copyright holder. > > > > Hey plonked Miller, gratis copies also fall under the "first sale" > > (for which the trigger is nothing but ownership of a particular copy > > or phonorecord lawfully made). > > > > But anyway, <http://www.gnu.org/philosophy/selling.html>. Kuh-kuh. > > Go read 17 USC in its entirety (hello "as a whole"-in-the-GPL hello) > including section 109. 106(3) is severely limited by the "exception" > to 106(3) in section 109. The reason why 106(3) is listed in 106 is to > provide legal basis to punish not only somebody who pirates works and > who may not even try or want to distribute pirated copies, but also > somebody who distributes pirated copies to the public that were > unlawfully made by another. Now, plonked Miller, you tell me how does > that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps > you can. I doubt it.
Here's what the author of http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his treatise, not the Foreword written by the Chief Judge and the Chief Intellectual Property Counsel to the Senate Judiciary Committee) who worked with the Chief Judge and the Chief Intellectual Property Counsel to the Senate Judiciary Committee on Internet, copyright, and patent issues as a Committee Fellow had to say about the GNU legal nonsense version 3. comment 388: Not a correct statement of copyright law Regarding the text: However, nothing else grants you permission to propagate or modify the Program or any covered works. In section: gpl3.notacontract.p0.s3 Submitted by: hollaar comments: This is not a correct statement of copyright law, at least in the United States. With respect to "propagate", it is likely a tautology because of the defintion of "propagate" covering only things "that require permission under applicable copyright law". But for "modify", 17 U.S.C. 117 permits the "owner of a copy of a computer program" to make an "adaptation" in particular circumstances, and makes it clear that making that adaptation does not "infringe copyright if you do not accept this License." It also does not seem to recognize the "first sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of a lawfully-made copy "without the authority of the copyright owner". Perhaps the interplay between the definition of "propagate" and this section covers it, but it is certainly not made clear and, in fact, misleads one in thinking that the only way to redistribute a lawful copy is to accept the License. noted by hollaar comment 389: Not a correct statement Regarding the text: You may not propagate, modify or sublicense the Program except as expressly provided under this License. In section: gpl3.termination.p0.s1 Submitted by: hollaar comments: As I noted in more detail in my comments on Paragraph 9, this is not an accurate statement. In the United States, 17 U.S.C. 109 ("first sale") and 117 ("computer programs") allow the owner of a lawfully-made copy to modify it in certain circumstances and to redistribute it without permission of the copyright owner. noted by hollaar comment 390: Permission may not be required for use Regarding the text: which means permission for use In section: gpl3.licensecompat.p6.s1 Submitted by: hollaar comments: In the United States, at least, permission may not be required to use a computer program if the user is the lawful owner of a copy. See 17 U.S.C. 117. United States copyright law does not give the copyright owner a right to control use (although the DMCA does provide sort of an access right if the information is protected by DRM, see 17 U.S.C. 1201(a), which does not apply here because of the anti-DRM language). Even if you regard the "use" of the computer program as a "reproduction" because it is being copied into memory (see MAI v. Peak, http://digital-law-online.info/cases/26PQ2D1458.htm), that reproduction is specifically allowed by 17 U.S.C. 117 for the lawful owner of the copy of the computer program. noted by hollaar comment 570: Just saying it doesn't make it so Regarding the text: No covered work constitutes part of an effective technological protection measure In section: gpl3.drm.p1.s1 Submitted by: hollaar comments: A covered work will be "part of an effective technological protection measure" (a term that mimics the DMCA "technological measure that effectively controls access to a work", much like "derived from" mimics "derivative work") based on what it does, not what you say. For example, you can't exempt yourself from patent law by simply stating that the "covered work is not a process, machine, manufacture, or composition of matter" (the classes of patentable things in the United States). noted by hollaar regards, alexander.
