As PJ kindly pointed out, there are several things wrong with my earlier message, reproduced below. So, here's a reply with an attempt to fix it up. I'm sorry for any confusion I may have caused (and I hope I've got it right now. I'm still not a lawyer :-)).
On Thursday 21 December 2006 00:12, Lourens Veen wrote: > > On Wednesday 20 December 2006 14:54, Pamela Jones wrote: > > Here's how I understand it, but I'm not a lawyer either and that is > > what you actually need: > > > > Copyright law covers copying, which implicates use, not just > > distribution. In other words, it blocks the first step, and hence > > all subsequent steps. > > That doesn't make sense to me. Why should you need to copy something > first to be able to use it? The problem here is in the definition of the word "use". PJ used it in the sense that copyright law uses it. In the copyright law text, to "use" a work seems to refer to creating a derived work from it or including it in a compilation, and Fair Use refers to conditions under which people are allowed to do this regardless of whether copyright law would otherwise prohibit this. What I meant was something more akin to what Section 117 of the US Copyright law refers to as "utilization". Section 117 is about computer programmes and "utilization" there seems to refer to running the programme. That is how I interpreted "use". To avoid confusion and make sure we're all on the same page, I'll use "to utilise" to refer to reading books, listening to CDs and running programmes from now on. So, with that in mind, I'm going to say that while copyright law reserves the exclusive right "to do and authorise" "use" to the copyright owner (§106 (2)) it doesn't reserve the right to utilise. So, while copyright law prevents you from copying parts of a book into the book that you're writing without permission (unless it falls under Fair Use), it doesn't prevent you from reading the book yourself or reading it to your children (§109 (c)). The GPLv2 actually has some of this confusion in it as well I think. Section 2 c) and the warranty disclaimer in section 12 seem to use "use" to refer to running the programme, while the preamble states "[...] that you can change the software or use pieces of it in new free programs; [...]", thus using "use" to refer to creating derived works. I haven't looked at the GPLv3 yet, but perhaps if it has the same ambiguity this could be improved there. > > A copyright license can add to the restrictions of copyright law or > > it can soften them. This is legal. The license need not abide by > > the restrictions of copyright law. It's what the author wants > > *instead* of copyright law. Just read a Microsoft EULA to see > > how much you can add to copyright law and still be probably legal. > > But is an EULA a copyright licence? And if it were, why was there > such a controversy about whether click-wrap is as legally binding as > an autograph? If it really were only a copyright licence, you > wouldn't need the click-wrap, just like with the GPL. AFAIK, such an > EULA is just a contract; it may include some terms that relate to > copyright law, but it's not a pure copyright licence. I'm still convinced that this is correct. If you buy a copy of MS Windows in the shop, §117(a)(1) says that you can copy it to your hard disc and run it without permission from the copyright owner. Of course, the installer will hit you with a click-wrap licence agreement that you'll have to agree to for it to work, and it contains a whole list of provisions that you really don't want to agree to. But I don't see how that has anything to do with copyright. > Of course, a copyright licence could say "If you want to distribute > copies of this drawing programme, you may do so, but only if you > don't use it to draw pink rabbits." Then you would have a choice: you > could either use it to draw pink rabbits and not copy it, or copy it, > and refrain from drawing pink rabbits. In the former case, you don't > have a copyright licence, but that's okay because you don't need one > if you're only going to use the programme. In the latter case, you do > need a copyright licence, but fortunately you can get one because > you've kept to all its provisions. s/use/utilise/g here. > > The GPL is a copyright license. That means it isn't required to do > > what copyright law says. In fact, it does not. It adds freedoms > > that copyright law would take away. To compare it, then, with fair > > use, a component of copyright law, is useless. If the license says > > you can do it, you can, despite copyright law. > > <snip> > > From the point of view of a user wishing to perform action X, the > licence and Fair Use definitely can be compared: both give her the > ability to do something legally. > <snip> I'm still happy with this. > > The authors of the GPL (or of any other license) can set whatever > > terms they wish, within the law, of course. They couldn't say you > > have to give them your firstborn or you must steal Bill Gates' car > > as a condition to using or distributing or modifying the software, > > because you can't set illegal terms. But other than that, you can > > say in the GPL that you can't have binary blobs, if you want to, > > and the law will uphold your decision. > > But will it do the copyright holders any good? Everyone will still be > able to have binary blobs as long as they don't do anything to the > software you own the copyright on that they would need a copyright > licence for. > > So, in my eyes, the legal question is whether that binary kernel > module is a work derived from the kernel. If it is, Then creating and distributing such a module constitutes "use" and > then copyright law says that you must have permission from the kernel > maintainers to distribute it, and because the kernel maintainers will > not give you permission any other way, you can only do so by accepting > the terms of the GPL. Which state that you have to provide the entire > derived work under the GPL, including the source. > > If the binary kernel module is a separate work that is not derived > from the kernel, then copyright law does not prohibit you from doing > anything with it, and you don't need anyones permission to distribute > it. You don't need to accept the terms of the GPL, and you can > distribute all the binary blobs you like. > > Because copyright law is civil law and not criminal law, there is a That's just completely wrong, and that makes the rest of that paragraph nonsense. I was actually pretty sure about this, probably because of the ruckus about the DMCA's criminal law provisions when it was first introduced. I didn't realise that ordinary copyright law has a criminal law element to it. But it does, it's in §506. Lourens
pgpDzizPqxGda.pgp
Description: PGP signature
_______________________________________________ Open-graphics mailing list [email protected] http://lists.duskglow.com/mailman/listinfo/open-graphics List service provided by Duskglow Consulting, LLC (www.duskglow.com)
