Hyman Rosen wrote: [...] > GPL. A court isn't going to let you make copies and use > first sale to sell them any more than it would let you > sell videotapes that you've recorded of over-the-air > broadcasts.
You confuse online distribution of unlimited number of copies (free software available for unrestricted downloading without any "I agree" manifestation of assent by downloader) with watching or hearing someone's performance (with the only excuse for transfer under 17 USC 109 being "fair use"). http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF ----- unlike the user of Netscape Navigator or other click-wrap or shrink- wrap licensees, the individual obtaining SmartDownload is not made aware that he is entering into a contract. SmartDownload is available from Netscape's web site free of charge. Before downloading the software, the user need not view any license agreement terms or even any reference to a license agreement, and need not do anything to manifest assent to such a license agreement other than actually taking possession of the product. From the user's vantage point, SmartDownload could be analogized to a free neighborhood newspaper, readily obtained from a sidewalk box or supermarket counter without any exchange with a seller or vender. It is there for the taking. ----- < quotes from dmca/sec-104-report-vol-<2|3>.pdf > Time Warner, Inc.: We note that the initial downloading of a copy, from an authorized source to a purchaser's computer, can result in lawful ownership of a copy stored in a tangible medium. [but electronic redistribution/move-and-delete of that copy to downstream recipient is not covered by first sale] Library Associations: First, as conceded by Time Warner, digital transmissions can result in the fixation of a tangible copy. By intentionally engaging in digital transmissions with the awareness that a tangible copy is made on the recipient's computer, copyright owners are indeed transferring ownership of a copy of the work to lawful recipients. Second, the position advanced by Time Warner and the Copyright Industry Organizations is premised on a formalistic reading of a particular codification of the first sale doctrine. When technological change renders the literal meaning of a statutory provision ambiguous, that provision "must be construed in light of its basic purpose" and "should not be so narrowly construed as to permit evasion because of changing habits due to new inventions and discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156-158 (1975). The basic purpose of the first sale doctrine is to facilitate the continued flow of property throughout society. The entire Reply by Library Associations is available at: http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf Isaac got it: ----- Further, my understanding is that Alexander was proposing lawfully acquiring and distributing copies and not making new copies. If the law requires that a backup or adapted copy be distributed with the originals, Alexander would do that and then acquire, at no expense, a new copy. Rinse lather repeat. You ask how a copy would be acquired without accepting the GPL. I'm not aware of an expectation or requirement to accept the GPL before downloading the software. Free software is often made available for downloading without any notice obtained before, during or after the download that the copies obtained must be deleted if the GPL is not accepted. Anyone can obtain GPLd software, and provided only that they include source code, operate a free or paid distribution ftp site in which they allow GPLd software to be downloaded without restriction. Isaac ---- regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
