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 <[EMAIL PROTECTED]> Barry Margolin <[EMAIL PROTECTED]> 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. In particular, there are a couple of mistatements of the law there. 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. 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. The second is that "nothing else grants you permission to ... distribute the program." 17 USC 109(a) states that: 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. However, you can't dispose of the possession of a computer program by rental or lending. See 17 USC 109(b). 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. (The stuff about signing the license is a little wierd, too. It's not really clear the point that is being made. Perhaps it's trying to say that since you haven't signed the license, you haven't accepted its terms yet, but will have to if you are going to perform an act that requires a permission giving in the license.) ----- http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803 ----- >"Licenses are not contracts: 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." [quoting Eben Moglen] That might be true IF "she doesn't have any right to act at all except as the license permits." But as I have pointed out here and in my comments to the FSF regarding the new GPLv3, that is not the case. United States copyright law provides a number of exceptions to the exclusive rights of the copyright owner, including "first sale" as covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner of a copy of a computer to reproduce or adapt it if necessary to use it. The convenient redefinition of things in the GPL reminds me of a quote from Abraham Lincoln: How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg. ----- http://groups.google.com/group/gnu.misc.discuss/msg/edb4cc1971b7ca49 ----- 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. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
