Re: Circumventing the GPL

2008-07-26 Thread David Kastrup
Tim Smith [EMAIL PROTECTED] writes:

 In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] 
 wrote:
  You can claim either agreement or non-agreement with the conditions.
  Your choice.  In the latter case, you had no permission to copy in the
  first place.
 
  Ah, but note that in my hypothetical, when I made the copies, I had no 
  intention of distributing them.  I was making them for my own use, and 
  did use all of them.  Thus, at the time they were made, they were 
  lawfully made.
 
 If I let go of a brick above your head with the firm intention to catch
 it again, and then I decide otherwise, that's fine?  Because there is no
 duty for people to catch bricks?

 Poor analogy.  Letting go of a brick above my head, with the intention 
 to catch it (and even if you in fact did catch it, so I come to no 
 harm), would still be assault.

Then every driver who puts his foot on the accelerator is assaulting a
lot of people since it requires him to take the foot off again (or even
brake!), an active action, to stop the car.

  Can that later act retroactively change the creation of the copies
  from lawful to unlawful?
 
 You stop heeding your part of the deal and you stop having your
 rights.  Simple as that.

 But if the copy was lawful, I don't *need* any GPL rights in order to
 distribute it, so the question remains: is whether or not a copy is
 lawfully made determined at the time the copy is made, or can it
 depend on later events?

It can be _decided_ by later events.  Like loading a gun may or may not
be preparation to murder.  Further actions decide what it has been.

Sort of a quantum dilemma.  It is like the I have never loved you
realization in a relationship.  Once you realize it, it has always been
that way.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-25 Thread Tim Smith
In article [EMAIL PROTECTED],
 Hyman Rosen [EMAIL PROTECTED] wrote:

 Tim Smith wrote:
  If you are distributing your copies
 
 What gave you the right to make copies?

GPL.  For example, suppose I run a small business.  I have 20 computers.  
I want to install some GPL software on them Monday.  Over the weekend, I 
download the software at home, and make 20 copies, on 20 CDs.  I happen 
to be out of CD-RW discs, so I burn to CD-R.

Monday, I take the 20 CDs to the office, and install on all 20 machines, 
feeling pretty impressed about how I saved a lot of time by having 20 
CDs so I could install on all 20 machines in parallel.

I have no more use for the 20 CDs, and since they are CD-R, not CD-RW, I 
can't erase them.  So I put them up for sale on eBay, like I do with all 
surplus equipment.

The copies were pretty clearly made lawfully under GPL.  I am clearly 
the owner of the copies.  So, why can't I take advantage of first sale 
and sell them, without the need of copyright permission?

-- 
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Re: Circumventing the GPL

2008-07-25 Thread David Kastrup
Tim Smith [EMAIL PROTECTED] writes:

 In article [EMAIL PROTECTED],
  Hyman Rosen [EMAIL PROTECTED] wrote:

 Tim Smith wrote:
  If you are distributing your copies
 
 What gave you the right to make copies?

 GPL.  For example, suppose I run a small business.  I have 20 computers.  
 I want to install some GPL software on them Monday.  Over the weekend, I 
 download the software at home, and make 20 copies, on 20 CDs.  I happen 
 to be out of CD-RW discs, so I burn to CD-R.

[...]

 The copies were pretty clearly made lawfully under GPL.  I am clearly
 the owner of the copies.  So, why can't I take advantage of first sale
 and sell them, without the need of copyright permission?

Because to make them lawfully, you had to have permission and this was
given only conditionally.  The conditions don't cease to exist once you
get your copy.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-25 Thread Hyman Rosen

Tim Smith wrote:
The copies were pretty clearly made lawfully under GPL.  I am clearly 
the owner of the copies.  So, why can't I take advantage of first sale 
and sell them, without the need of copyright permission?


Well, maybe. I think it would be a pretty close reading
if challenged.
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Re: Circumventing the GPL

2008-07-25 Thread John Hasler
Tim Smith wrote:
 The copies were pretty clearly made lawfully under GPL.  I am clearly the
 owner of the copies.  So, why can't I take advantage of first sale and
 sell them, without the need of copyright permission?

Because you agreed not to sell them without source when you accepted the
GPL which you did when you made the copies.  It is the people you
distribute the copies to who get the benefit of first sale.
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL

2008-07-25 Thread Alexander Terekhov

John Hasler wrote:
 
 Tim Smith wrote:
  The copies were pretty clearly made lawfully under GPL.  I am clearly the
  owner of the copies.  So, why can't I take advantage of first sale and
  sell them, without the need of copyright permission?
 
 Because you agreed not to sell them without source when you accepted the
 GPL which you did when you made the copies.  

Ahhh. But don't you know that the GPL is not a contract (agreement) in
the GNU Republic, uncle Hasler? :-)

Anyway, how does a breach of that promise/obligation could possibly
violate copyright law given 17 USC 109?

regards,
alexander.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread David Kastrup
Alexander Terekhov [EMAIL PROTECTED] writes:

 John Hasler wrote:
 
 Tim Smith wrote:
  The copies were pretty clearly made lawfully under GPL.  I am clearly the
  owner of the copies.  So, why can't I take advantage of first sale and
  sell them, without the need of copyright permission?
 
 Because you agreed not to sell them without source when you accepted the
 GPL which you did when you made the copies.  

 Ahhh. But don't you know that the GPL is not a contract (agreement) in
 the GNU Republic, uncle Hasler? :-)

You can claim either agreement or non-agreement with the conditions.
Your choice.  In the latter case, you had no permission to copy in the
first place.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread Alexander Terekhov

David Kastrup wrote:
 
 Alexander Terekhov [EMAIL PROTECTED] writes:
 
  John Hasler wrote:
 
  Tim Smith wrote:
   The copies were pretty clearly made lawfully under GPL.  I am clearly the
   owner of the copies.  So, why can't I take advantage of first sale and
   sell them, without the need of copyright permission?
 
  Because you agreed not to sell them without source when you accepted the
  GPL which you did when you made the copies.
 
  Ahhh. But don't you know that the GPL is not a contract (agreement) in
  the GNU Republic, uncle Hasler? :-)
 
 You can claim either agreement or non-agreement with the conditions.
 Your choice.  In the latter case, you had no permission to copy in the
 first place.

You confuse conditions precedent with covenants. In the former case,
failure to fullfill condition precedent means that I had no permission
to copy in the first place. But restrictions on distribution of a copy
that I make (under authorization) just can't be conditions precedent
because a copy must be made first. Got it now?

regards,
alexander.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread David Kastrup
Alexander Terekhov [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 
 Alexander Terekhov [EMAIL PROTECTED] writes:
 
  John Hasler wrote:
 
  Tim Smith wrote:
   The copies were pretty clearly made lawfully under GPL.  I am
   clearly the owner of the copies.  So, why can't I take advantage
   of first sale and sell them, without the need of copyright
   permission?
 
  Because you agreed not to sell them without source when you
  accepted the GPL which you did when you made the copies.
 
  Ahhh. But don't you know that the GPL is not a contract (agreement)
  in the GNU Republic, uncle Hasler? :-)
 
 You can claim either agreement or non-agreement with the conditions.
 Your choice.  In the latter case, you had no permission to copy in
 the first place.

 You confuse conditions precedent with covenants. In the former case,
 failure to fullfill condition precedent means that I had no permission
 to copy in the first place.  But restrictions on distribution of a
 copy that I make (under authorization) just can't be conditions
 precedent because a copy must be made first.  Got it now?

Agreement is precedent to making copies.  You can't drop it later.  It
is similar to buying things by bank draft.  If I later decide that I
don't relish paying, I can't just dissolve the bank account and let my
vendor sort out the mess by himself.  Even if I claim that at the time
of purchase I was perfectly intending to hold up my part of the deal.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread David Kastrup
Alexander Terekhov [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 [...]
 Agreement is precedent to making copies.  

 No. The act of making copies (other than by downloading from online
 distributor without I agree manifestation of assent prior to getting
 copies, fair use, etc.) makes me subject to contractual obligations
 (let's assume enforceable contract) spelled out in the license.

 You can't drop it later.  

 That's called breach of contract. Nothing unusual. The contract laws
 recognize a concept called efficient breach which encourages breach of
 a contract if it's economically efficient to do so. Compliance with a
 contract is almost always voluntary -- if you choose not to comply, then
 you don't have to. You merely have to compensate the non-breaching party
 for his expectancy interest (pay contract damages). 

 And that has nothing to do with copyright infringement.

Tell that to the people serving jail time for copying and distributing
music.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread Alexander Terekhov

David Kastrup wrote:
 
 Alexander Terekhov [EMAIL PROTECTED] writes:
 
  David Kastrup wrote:
  [...]
  Agreement is precedent to making copies.
 ^

 
  No. The act of making copies (other than by downloading from online
  distributor without I agree manifestation of assent prior to getting
  copies, fair use, etc.) makes me subject to contractual obligations
  (let's assume enforceable contract) spelled out in the license.
^^

 
  You can't drop it later.
 
  That's called breach of contract. Nothing unusual. The contract laws
  recognize a concept called efficient breach which encourages breach of
  a contract if it's economically efficient to do so. Compliance with a
  contract is almost always voluntary -- if you choose not to comply, then
  you don't have to. You merely have to compensate the non-breaching party
  for his expectancy interest (pay contract damages).
 
  And that has nothing to do with copyright infringement.
 
 Tell that to the people serving jail time for copying and distributing
 music.

Strawman. What copyright license (agreement -- see above) did they
violated?

I want to see the exact TC of that copyright license. Post it here. 

regards,
alexander.

-- 
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
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Re: Circumventing the GPL

2008-07-25 Thread Tim Smith
In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] 
wrote:
   The copies were pretty clearly made lawfully under GPL.  I am clearly the
   owner of the copies.  So, why can't I take advantage of first sale and
   sell them, without the need of copyright permission?
  
  Because you agreed not to sell them without source when you accepted the
  GPL which you did when you made the copies.  
 
  Ahhh. But don't you know that the GPL is not a contract (agreement) in
  the GNU Republic, uncle Hasler? :-)
 
 You can claim either agreement or non-agreement with the conditions.
 Your choice.  In the latter case, you had no permission to copy in the
 first place.

Ah, but note that in my hypothetical, when I made the copies, I had no 
intention of distributing them.  I was making them for my own use, and 
did use all of them.  Thus, at the time they were made, they were 
lawfully made.

It was only later, when they were now just physical junk to me, that I 
decide to dispose of them the same way I do with other excess physical 
junk.

Can that later act retroactively change the creation of the copies from 
lawful to unlawful?  If so, how retroactive can it be?  What if I make a 
copy for my own use.  Ten years pass, and I'm cleaning out my old junk, 
and find the CD.  I had the source once, but have lost it.  Can I 
distribute that physical CD?

I think that if I were making the copies with intent to distribute, then 
a good argument could be made that the copies are unlawful.  The court 
would see this as trying to cheat on the license, and find some way in 
equity to bitch slap me.

But that's not my hypothetical--in my hypothetical there was never any 
intent to cheat.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread David Kastrup
Tim Smith [EMAIL PROTECTED] writes:

 In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] 
 wrote:
   The copies were pretty clearly made lawfully under GPL.  I am clearly 
   the
   owner of the copies.  So, why can't I take advantage of first sale and
   sell them, without the need of copyright permission?
  
  Because you agreed not to sell them without source when you accepted the
  GPL which you did when you made the copies.  
 
  Ahhh. But don't you know that the GPL is not a contract (agreement) in
  the GNU Republic, uncle Hasler? :-)
 
 You can claim either agreement or non-agreement with the conditions.
 Your choice.  In the latter case, you had no permission to copy in the
 first place.

 Ah, but note that in my hypothetical, when I made the copies, I had no 
 intention of distributing them.  I was making them for my own use, and 
 did use all of them.  Thus, at the time they were made, they were 
 lawfully made.

If I let go of a brick above your head with the firm intention to catch
it again, and then I decide otherwise, that's fine?  Because there is no
duty for people to catch bricks?

 It was only later, when they were now just physical junk to me, that I
 decide to dispose of them the same way I do with other excess physical
 junk.

You don't have that choice.

 Can that later act retroactively change the creation of the copies
 from lawful to unlawful?

You stop heeding your part of the deal and you stop having your rights.
Simple as that.

 I think that if I were making the copies with intent to distribute,
 then a good argument could be made that the copies are unlawful.  The
 court would see this as trying to cheat on the license, and find some
 way in equity to bitch slap me.

 But that's not my hypothetical--in my hypothetical there was never any
 intent to cheat.

It doesn't matter.  The law does not require judges to read minds, it
relies on facts.  If I decide to kill you and later change my mind
before I do anything, no law in the world can pursue me for it.  Intent
is not actionable.  Preparations and attempts are.

-- 
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Re: Circumventing the GPL

2008-07-25 Thread Tim Smith
In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] 
wrote:
  You can claim either agreement or non-agreement with the conditions.
  Your choice.  In the latter case, you had no permission to copy in the
  first place.
 
  Ah, but note that in my hypothetical, when I made the copies, I had no 
  intention of distributing them.  I was making them for my own use, and 
  did use all of them.  Thus, at the time they were made, they were 
  lawfully made.
 
 If I let go of a brick above your head with the firm intention to catch
 it again, and then I decide otherwise, that's fine?  Because there is no
 duty for people to catch bricks?

Poor analogy.  Letting go of a brick above my head, with the intention 
to catch it (and even if you in fact did catch it, so I come to no 
harm), would still be assault.

...
  Can that later act retroactively change the creation of the copies
  from lawful to unlawful?
 
 You stop heeding your part of the deal and you stop having your rights.
 Simple as that.

But if the copy was lawful, I don't *need* any GPL rights in order to 
distribute it, so the question remains: is whether or not a copy is 
lawfully made determined at the time the copy is made, or can it depend 
on later events?


-- 
--Tim Smith
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Re: Circumventing the GPL

2008-07-24 Thread Hyman Rosen

Tim Smith wrote:

When I'm done watching, can I sell the recording?

 The copy was lawfully made.  I own the copy.
 Seems like first sale says I can.

You won't be able to. The Supreme Court decision which
affirmed the legality of time-shifting refers to earlier
similar laws about audio recordings for personal use,
and the copyright code itself is full of detailed
specifications about certain groups being allowed to make
copies only for their own use.
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Re: Circumventing the GPL

2008-07-24 Thread John Hasler
Hyman writes:
 Authors can give up some exclusive rights.

Yes, copyright owners can give up some rights: the one in your example has
done so.

 In the scenario I propose, the author has completely honored the GPL -
 with every copy he sells, he includes the source, and has no further
 obligation.

He has also sold his right to distribute source to the buyer of the copies.
Quite legal.

 There may be a deal he has entered into not to distribute the program in
 particular ways, but that's fine - he's the author, he's not obligated to
 distribute if he doesn't want to.

He no longer can distribute source: he sold that right.

 The person who has purchased the copy...

...Has also purchased the exclusive right to distribute the source and is
therefor one of the copyright owners.

 The person who has purchased the copy is then free to sell it without
 getting permission from the copyright holder, the author.  Because that
 sale does not require a license, the recipient has not received it under
 the terms of the GPL, and has no one from whom he can demand the source
 code.

The owners of the work that your author based his work on can sue both
parties (both of whom now own an interest in the copyright in the work
under discussion) for copyright infringement when they attempt to
distribute the work without complying with the terms of the GPL.  The
purchaser's claim of first sale will be disallowed because of his
ownership of the exclusive right to distribute source, which makes him a
part-owner of the copyright.
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL

2008-07-24 Thread Hyman Rosen

John Hasler wrote:

Yes, copyright owners can give up some rights:

 the one in your example has done so.

He has not.


He has also sold his right to distribute source

 to the buyer of the copies.

He has not.


He no longer can distribute source: he sold that right.


He did not.


The person who has purchased the copy...

...Has also purchased the exclusive right to distribute

 the source and is therefor one of the copyright owners.

He has not and he is not.

I don't know where you're getting this stuff. The manufacturer
sells copies of software to a reseller, in full compliance with
the GPL, shipping binaries and source. He has not sold any
rights. The reseller has not bought any rights. He may do
only what copyright law allows - he may choose to distribute
under the GPL, or he may choose to distribute under first sale.
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Re: Circumventing the GPL

2008-07-24 Thread Tim Smith
In article [EMAIL PROTECTED],
 Hyman Rosen [EMAIL PROTECTED] wrote:
 Tim Smith wrote:
  1. Acquire a lawful copy of a GPL binary.  Doesn't matter how--download 
  it from somewhere, compile it from source, whatever.
  2. Make copies of the binary.  GPL says this is OK.
  3. Sell or give away those copies.  They are lawfully made copies, and 
  the person owns those particular copies, so this seems to fall under 
  first sale.
 
 Nope. GPL3p2 says
  You may make, run and propagate covered works that you
   do not convey, without conditions so long as your license
   otherwise remains in force.

Ah, but what about GPLv3 section 0, which includes this:

   To ³propagate² a work means to do anything with it that, without 
   permission, would make you directly or secondarily liable for 
   infringement under applicable copyright law, except executing it on 
   a computer or modifying a private copy. Propagation includes 
   copying, distribution (with or without modification), making 
   available to the public, and in some countries other activities as 
   well.

If you are distributing your copies under the protection of first sale, 
then that is not propagation, as defined in the first sentence of that 
paragraph.  The second paragraph says propagation includes distribution, 
but the question then arises is that meant to be independent of the 
first sentence, or is it illustrative?  That is, does it only include 
distribution that would make you liable under copyright law?

I believe the FSF's position is that GPL (all versions) does not take 
away any rights--it only gives you additional rights above what 
copyright law allows.  Based on that, I'd assume that GPL does not try 
to punish you for exercising first sale rights.

-- 
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Re: Circumventing the GPL

2008-07-24 Thread John Hasler
Hyman writes:
 The manufacturer sells copies of software to a reseller, in full
 compliance with the GPL, shipping binaries and source. He has not sold
 any rights. The reseller has not bought any rights.

You wrote that the manufacturer had been paid by the reseller for agreeing
not to make source available to anyone but the reseller, leaving the
reseller, who has a license (the GPL), the only one free to distribute
source.  That is the sale of a right by the manufacturer to the reseller.

 He may do only what copyright law allows - he may choose to distribute
 under the GPL, or he may choose to distribute under first sale.

He owns part of the copyright (the right to distribute source).
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL

2008-07-24 Thread Alexander Terekhov

Tim Smith wrote:
 
 In article [EMAIL PROTECTED],
  Hyman Rosen [EMAIL PROTECTED] wrote:
  Tim Smith wrote:
   1. Acquire a lawful copy of a GPL binary.  Doesn't matter how--download
   it from somewhere, compile it from source, whatever.
   2. Make copies of the binary.  GPL says this is OK.
   3. Sell or give away those copies.  They are lawfully made copies, and
   the person owns those particular copies, so this seems to fall under
   first sale.
 
  Nope. GPL3p2 says
   You may make, run and propagate covered works that you
do not convey, without conditions so long as your license
otherwise remains in force.
 
 Ah, but what about GPLv3 section 0, which includes this:
 
To ³propagate² a work means to do anything with it that, without
permission, would make you directly or secondarily liable for
infringement under applicable copyright law, except executing it on
a computer or modifying a private copy. Propagation includes
copying, distribution (with or without modification), making
available to the public, and in some countries other activities as
well.
 
 If you are distributing your copies under the protection of first sale,
 then that is not propagation, as defined in the first sentence of that
 paragraph.  The second paragraph says propagation includes distribution,
 but the question then arises is that meant to be independent of the
 first sentence, or is it illustrative?  That is, does it only include
 distribution that would make you liable under copyright law?

Professor Lee Hollaar*** (who worked on Internet, copyright, and patent
issues as a U.S. Senate Judiciary Committee Fellow) has commented
regarding GPLv3 wording (and apparently his comments were simply
dismissed from consideration by RMS Eben  Co.) on
http://gplv3.fsf.org/comments system:

-
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 [read: 0 as in
gpl3.notacontract.p0], 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
-

***) http://digital-law-online.info/lpdi1.0/treatise2.html

regards,
alexander.

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Re: Circumventing the GPL

2008-07-24 Thread Hyman Rosen

Tim Smith wrote:

If you are distributing your copies


What gave you the right to make copies?
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Re: Circumventing the GPL

2008-07-24 Thread Hyman Rosen

John Hasler wrote:

That is the sale of a right by the manufacturer to the reseller.

 ...

He owns part of the copyright (the right to distribute source).


I do not believe that either of these statements is correct.
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Re: Circumventing the GPL

2008-07-24 Thread Hyman Rosen

Alexander Terekhov wrote:

and apparently his comments were simply dismissed
http://gplv3.fsf.org/comments system:
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

GPLv3 extends the tautology to 'modify' by similarly
qualifying it to actions which would not otherwise
be legal under copyright. So apparently his comments
were not dismissed at all.
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Re: Circumventing the GPL

2008-07-23 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 You don't need to become the owner.
 It is enough if you become _responsible_.

 Enough for what? I just don't understand what you're
 saying. Remember, the GPL is just a copyright license.
 It has no notion of responsibility.

But the courts have.  I can't drop a brick on someone's head and then
claim that I am not responsible for gravity's actions.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  The courts should simply not enforce invalid contracts. LAW 101. To
  date, the courts did NOT enforce the GPL. And violations flourish.
 
 What a strange notion! The courts vigorously enforce copyright
 on songs and movies. And violations flourish.

Don't know about US but here in Germany sharing is really dangerous
endeavour as of late.

The net is monitored by authorities and the chances that you'll end up
with criminal investigation are pretty high.

Once that happens (the logs are then made available to interested
parties) it's 100% guaranteed that you'll get a nice looking invoice or
two from copyright holder's lawyers to pay compensation and
contractually pledge to not share anymore (with horrendous contractual
damages in the case of a breach). Or go to court and lose even more.
Most caught sharers pay compensation, sign the pledge, and stop sharing.
I have yet to hear about such cases going to civil courts. (The criminal
investigation is usually dropped once copyright holders inform
authorities about signed Unterlassungserklärung.)

What does that have to do with the GPL Hyman?

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

David Kastrup wrote:

But the courts have.


What the courts have done is to uphold first sale,
despite the vehement objections of the software
developers who argued that EULAs disallowed it.

This was recently decided in Softman v. Adobe.
See http://www.linuxjournal.com/article/5628.
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  What does that have to do with the GPL Hyman?
 
 You seemed to claim that violations of the GPL
 flourish because courts have not enforced it.
 
 I pointed out that violations of copyright in
 songs and movies flourish even though courts do
 enforce it, thereby throwing doubt on your claim.

And I pointed out that at least in Germany of late violations of
copyright in songs and movies by sharers are on decline without any
court enforcement. There are thousands and thousands caught sharers who
had to pay a pretty penny in compensation and who is now instead of
sharing (they all had to pledge not to share under draconian contractual
penalty) are telling others not-caught-yet sharers don't do that or
you'll end up like me. Many listen and stop sharing.

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Rjack

Ciaran O'Riordan wrote:

rjack [EMAIL PROTECTED] writes:

I see you have [...]


What I've done is I've applied Richard Feynman's simple rule about theories:
if it disagrees with experiment it is wrong.

You proposed a controversial, completely unproven idea of copyright law that
would have certain consequences.  I pointed out that the observed
consequences in the real world do not match the consequences that would be
seen if your theory was right.



What is controversial or unproven about 17 USC sec. 301 of the 
Copyright Act?


Read for instance Jacobsen v. Katzer. Free software advocates have long 
been in total denial concerning *historically well established* 
principles concerning licensing such as the fact that a copyright 
license is a contract. The case law is replete with decisions that 
demonstrate the principles applied to copyright licensing. Crackpots 
like Eben Moglen are responsible for the denial of these facts. If you 
chant the mantra that a license is not a contract long enough, it 
takes on a truth of its own in many gullible folks minds.


Instead of productively using Google to find and read these case law 
decisions, Free Softies simply spend their ink issuing wishful denials.



That makes your idea look wrong.


Who, pray tell, are these mysterious billion dollar companies and what would
their business model resemble?


Microsoft is an obvious example.  Making problems for GPL'd software is a
big priority for them.  This is clear from the millions they pumped into SCO
and the press statements that Bill and his replacement have made about the
GPL.




Microsoft *loves* the GPL. The GPL intimidates many small companies 
(witness the BusyBox cases) and keeps them from competing in the 
marketplace. Linux under a BSD license is Microsoft's worst nightmare.


Sincerely,
Rjack
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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

Alexander Terekhov wrote:

And I pointed out that at least in Germany of late violations of
copyright in songs and movies by sharers are on decline without any
court enforcement.


Alexander Terekhov wrote:
 Or go to court and lose even more.

Umm, right.
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Re: Circumventing the GPL

2008-07-23 Thread rjack

Ciaran O'Riordan wrote:

Rjack [EMAIL PROTECTED] writes:

What is controversial or unproven about 17 USC sec. 301 of the Copyright
Act?


Exactly.  It exists, and no one in a position to act is claiming that it 
makes the GPL invalid or not work like FSF claims it works.




The SFLC is in a position to act -- all they have to to do is refrain from
voluntarily dismissing one of their silly lawsuits and let a judge review their
claims on the merits.

If that law impacted the GPL, there would be controversy.  There's none, so 
it doesn't.




No controversy eh?
Googling { GPL preempted }, I get 10,100 hits.
Free Softies certainly wear efficient blinders.

Sincerely,
Rjack

In light of their facts, those cases thus stand for the entirely unremarkable
principle that 'uses' that violate a license agreement constitute copyright
infringement only when those uses would infringe in the absence of any license
agreement at all.; Storage Technology Corp. v. Custom Hardware Engineering 
Consulting, Inc., 421 F.3d 1307 (United States Court of Appeals for the Federal
Circuit 2005).


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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

rjack wrote:

all they have to to do is refrain from voluntarily dismissing

 one of their silly lawsuits and let a judge review their claims
 on the merits.

Judges are not in the business of reviewing claims.
If the parties to a dispute have agreed on a settlement
then there is no case to decide.

After each of these voluntary dismissals, the source code
for the GPLed product is available from the distributor.
There is no need for continuing a case when they have what
they wanted.
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Hyman Rosen wrote:
[...]
 After each of these voluntary dismissals, the source code
 for the GPLed product is available from the distributor.

That's verifiably not true.

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

Alexander Terekhov wrote:

That's verifiably not true.


It's certainly verifiable. Go to each SFLC filing, find
the website of the company they sued, and see if there
is a place from which to obtain sources (substituting
ActionTec for Verizon, before you say anything).

I don't have a burning need to do this, so I'll keep on
saying that they got what they wanted, you can keep saying
that they didn't, and maybe some enterprising person will
be inspired to do the work.
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Hyman Rosen wrote:

[... substituting ...]

   a = pi*r^2

let's substitute pi with c

   a = c*r^2

now 

   e = m*c^2

let's subsitute c for m and r for c

   e = c*r^2

it follows

   a = e

it follows

   pi = c

it follows 

   3.14159 = 299792458

Hyman science.

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

Alexander Terekhov wrote:

Hyman Rosen wrote:

[... substituting ...]

   3.14159 = 299792458
Hyman science.


For most of 2007, Actiontec FIOS routers were being shipped
with GPLed software and without complying with the GPL.
After the lawsuit ended, Actiontec FIOS routers are being
shipped with GPLed software and the source code is available
from Actiontec. I consider that a successful outcome, and
clearly so do SFLC's clients, since they dropped the suit.
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  Hyman Rosen wrote:
  [... substituting ...]
 3.14159 = 299792458
  Hyman science.
 
 For most of 2007, Actiontec FIOS routers were being shipped

Verizon's FiOS router firmware download page says (in BOLD red text):

  Verizon FiOS router

and displays a note:

Note: This firmware update is applicable to both Actiontec and Verizon
branded FiOS Routers.

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Tim Smith
In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] 
wrote:
  It occurs to me that in the U.S. there is a relatively easy
  way to circumvent the requirement of giving away source code
  for GPLed software.

Not just the US.  Pretty much every place with copyright law has an 
equivalent of the first sale doctrine.  It often goes by the name of 
copyright exhaustion.

  Company A prepares a work derived from GPL-licensed code.
  Company B purchases copies of this work from Company A.
  For each copy purchased, Company A sends Company B two disks,
  one with the binaries and one with the sources. Company A has
  thus completely discharged its duties under the GPL. Then
  Company B turns around resells only the binary disks to its
  customers, but not the source. Company B is allowed to do this
  under the First Sale Doctrine, and therefore does not need a
  license to resell the software. The customers of Company B
  have no one from whom they can demand source code, and thus the
  GPL is circumvented.
 
 Where is the point in throwing away valuable material?  Where is the
 point in paying A for copying source and binaries _AND_ then make you
 unable to do copies yourself?
 
 I mean, it's like circumventing robbery laws by withdrawing money from
 your own bank account pointing your gun on an ATM all the while.

I think when this happens, it is not going to be intentional (in the 
sense of trying to get around GPL).  Instead of two discs, it will be 
one disc of source, and one device with embedded GPL code.  Company A 
includes the disc in order to satisfy their GPL obligation.

Company B discards the source disc because they don't need it 
themselves, and the device works fine for their customers without it, so 
discarding it means one less item they have to put in the box.


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Re: Circumventing the GPL

2008-07-23 Thread Tim Smith
In article [EMAIL PROTECTED],
 Hyman Rosen [EMAIL PROTECTED] wrote:

 David Kastrup wrote:
  Where is the point in throwing away valuable material?  Where is the
  point in paying A for copying source and binaries _AND_ then make you
  unable to do copies yourself?
 
 That way Company A gets to have its cake and eat it to.
 It leverages available GPLed software so that the software
 it needs can be developed faster, and it prevents the source
 of the modified software from becoming visible to anyone else
 other than itself and the developers, so that it can gain
 competitive advantage and withhold secrets.

I don't think that will work.  After all, company B doesn't have to 
throw away the source.  B could ship it.  So, A can't rationally count 
on it not getting out.

A could try to make a contractual arrangement requiring B to throw out 
the source, but then I think A would be violating GPL, so that won't fly.

-- 
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Re: Circumventing the GPL

2008-07-23 Thread Tim Smith
In article [EMAIL PROTECTED],
 John Hasler [EMAIL PROTECTED] wrote:
 In order to be a first sale under the intent of the law.  First sale
 clearly contemplates a transaction such as walking into a bookstore,
 grabbing a book, plunking down $20, and walking out.  You propose a

A sale is not required, though.  All that's required is that the person 
distributing own the copy they are distributing, and that it was legally 
acquired.  In particular, it applies to copies that were given away for 
free.

There was an important case about that recently, where a record company 
gave away promo CDs to radio stations and others, clearly marked as for 
promotional use only and not for resale.  Some of the stations disposed 
of the CDs, where they ended up in second hand stores, and defendant 
bought them and sold them on eBay.  The record company said this was a 
no-no.  They court said that once the record company gave them away, 
first sale applied.  It doesn't matter that they were gifts.

-- 
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Re: Circumventing the GPL

2008-07-23 Thread Tim Smith
In article [EMAIL PROTECTED],
 Hyman Rosen [EMAIL PROTECTED] wrote:
 Company A prepares a work derived from GPL-licensed code.
 Company B purchases copies of this work from Company A.
 For each copy purchased, Company A sends Company B two disks,
 one with the binaries and one with the sources. Company A has
 thus completely discharged its duties under the GPL. Then
 Company B turns around resells only the binary disks to its
 customers, but not the source. Company B is allowed to do this
 under the First Sale Doctrine, and therefore does not need a
 license to resell the software. The customers of Company B
 have no one from whom they can demand source code, and thus the
 GPL is circumvented.

I'm glad to see people are finally taking some interest in this area.  
I've been expecting it to show up since at least as far back as 2005:

 http://groups.google.com/group/comp.os.linux.advocacy/msg/1569a83d255fb3be?hl=endmode=source

http://groups.google.com/group/comp.os.linux.advocacy/msg/1569a83d255fb3
be?hl=endmode=source


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Re: Circumventing the GPL

2008-07-23 Thread Hyman Rosen

Alexander Terekhov wrote:

 Now imagine that Actiontec ships Verizon's FiOS router
boxes to Verizon and only Verizon (fully fulfilling the GPL obligations
by providing the source code to its customer Verizon)... not end users.
Who is supposed to provide the source code to you?


No one. This is the First Sale thing I've been talking about.
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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov

Tim Smith wrote:

[... first sale ...]

 I'm glad to see people are finally taking some interest in this area.
 I've been expecting it to show up since at least as far back as 2005:

2005?

http://groups.google.com/[EMAIL PROTECTED]
(Here's the ruling)

2004!

:-)

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Alexander Terekhov
http://warmcat.com/_wp/2008/05/23/exhaustion-and-the-gpl/

-
Exhaustion and the GPL

Some years ago I came across a guy Alexander Terekhov who worked then
for IBM and had outspoken views about the viability of the GPL.

If I understood it, his opinion was that the license terms of the GPL
would not survive resale, due to the well established “first sale
doctrine” and its EU equivalent “exhaustion”.  It basically means that
the copyright holder cannot stop you reselling your software, and that
the license terms will not apply to the guy receiving it.

I tried to understand this further, but Alexander was not always easy
for me to comprehend and had then a habit of linking to his own posts
elsewhere to bolster his position, leading to a kind of echo chamber of
Terekhovs all nodding vigorously at each other.  He also back then and
evidently more recently too explained legal decisions that did not fit
his understanding by calling the Judges in question “morons”, etc.  Well
the forum I met him at had a very high trolling quotient so it just
joined the rest of the anti-GPL sentiment there for me in the end and I
ignored it.

GPL is a license too

But I was reminded of this last night when I read about a recent
decision against Autodesk which is being widely seen as a victory for
Joe Softwarebuyer.  From the Patry blog post link above:

...many software companies have taken the position that they can convey
the copy to the customer in an over-the-counter transaction for a
one-time payment, but describe that transaction as a license; as a
license, the first sale doctrine doesn’t apply, meaning copyright owners
can prevent further distribution of the copy...

Doesn’t this vindicate Alexander’s position?  How can GPL terms stick
past resale if Autodesk EULA ones don’t?  Nothing stops “built-in” or
“automated” resale to clense software of any licensing restriction.

A lot of people seem to be happy about the paid-for world being freed
from license conditions, are they going to be happy if it turns out that
everyone is also freed from GPL conditions?

Civil infringement and Punishment

What effect would this have on contribution I wonder.  It seems to me
the real-world advantages from being active in a project by contributing
will still apply.  But it will enable private proprietary forking for
products, the kind of thing that Harald Welte’s gp-violations.org has
had success attacking and punishing to date.  Contributors will see
their work used in commercial products without the changes being open.

But the BSD folks seem to survive this outrage without it removing their
motivation.  And from time spent looking at music licensing over the
years, I kind of recognize an element of proprietary vindictiveness in
gpl-violations… of course the member companies hiding behind the RIAA
attacks are also “perfectly within their rights” to embark on much worse
vindictive destruction, but they are not entirely dissimilar and that
always bothered me.

Playing ball or going home?

Well, this decision is subject to appeal, will only apply to the
jurisdiction of that court, etc, so the sky didn’t fall in already.  But
there is quite a bit of harmonization of copyright law thanks to the
insistence of rich rightholder companies mainly from the US side.  But
if this is upheld, it may come to contaminate most Western countries and
turn GPL terms in unenforcable noise — the choices would be in effect
public domain or closed.

I guess some people will go closed rather than have their work
exploited, but I expect most people will just continue on, and
contributions will continue to come perfectly fine.  The advantages from
being a visible contributor and taking upstream directly are still going
to apply, so will the bitrot that happens to any additional code put on
top and maintained privately.

Too mature to care?

Maybe now we reached a point that the social, financial, engineering and
public advantages from cooperation are ingrained enough that we don’t
need a license to protect them anyway?  But I read this and I feel a
sinking feeling about the naivity of such a proposal.

Tags: autodesk, exhaustion, first sale doctrone, gpl

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-

chuckles

regards,
alexander.

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Re: Circumventing the GPL

2008-07-23 Thread Tim Smith
In article [EMAIL PROTECTED],
 Alexander Terekhov [EMAIL PROTECTED] wrote:
 http://warmcat.com/_wp/2008/05/23/exhaustion-and-the-gpl/
 
 -
 Exhaustion and the GPL

That reminds me of a question my professor asked us in copyright law 
class when I was in law school, when we were discussing the Betamax 
case.  I use my VCR to record a movie off of TV so I can watch it later.  
Fair use, according the the Supreme Court.

When I'm done watching, can I sell the recording?  The copy was lawfully 
made.  I own the copy.  Seems like first sale says I can.

What if I set up a bank of 1000 VCRs, to record 1000 copies?  Can I sell 
those?  That case is tricker, I think.  I'm not making the copies for my 
personal time shifting now, so maybe that will change the balance in the 
fair use analysis.  If that makes my copies unlawful, then first sale 
does not apply.

In the GPL hypothetical I've discussed before, and that Hyman is now 
discussing, there isn't necessarily any intention to circumvent the 
GPL.  The most likely way it would arise, in my opinion, is simply that 
company A ships with source because they want to satisfy GPL, and find 
that a more convenient way than making the source available for three 
years via a written offer.  Company B discards the source simply because 
they don't find it useful, and it is cheaper and more efficient to not 
have to bother dropping the CD in the box.  (Even if it takes no effort 
at all to include the CD, it is still going to generate support 
costs--its presence *will* confuse some customers).

Note: this hypothetical applies to pretty much all licenses, not just 
GPL.

But suppose someone actively wanted to circumvent GPL, using first sale?  
What if they simply took this approach:

1. Acquire a lawful copy of a GPL binary.  Doesn't matter how--download 
it from somewhere, compile it from source, whatever.

2. Make copies of the binary.  GPL says this is OK.

3. Sell or give away those copies.  They are lawfully made copies, and 
the person owns those particular copies, so this seems to fall under 
first sale.

Note that this differs from my 1000 VCR hypothetical, because there the 
copying was not authorized.  But GPL authorizes the copying.  Oops.

Also note: this is not a problem for a free software license that is 
enforced as a contract.  With such a license, they have agreed to 
distribute source with copies they make, so there will be an action for 
breach of contract.  And if the contract is written right, that will 
terminate their permission to make copies, and stop them dead in their 
tracks.

It's *only* the GPL that is susceptible to this blatant circumvention, 
due to its perverse insistence on not being a contract, but merely a 
bare copyright license only adding to what copyright already allows you 
to do.

(I believe I read somewhere...Larry Rosen's book, perhaps...that many 
jurisdictions do not recognize bare licenses, and GPL *would* be seen as 
a contract on those jurisdictions.  Maybe that provides a saving 
throw--if someone tries to blatantly circumvent by making copies and 
distributing under first sale, you sue them in a jurisdiction that would 
treat GPL as a contract).

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Re: Circumventing the GPL

2008-07-23 Thread rjack

Tim Smith wrote:



(I believe I read somewhere...Larry Rosen's book, perhaps...that many 
jurisdictions do not recognize bare licenses, and GPL *would* be seen as a

contract on those jurisdictions.  Maybe that provides a saving throw--if
someone tries to blatantly circumvent by making copies and distributing under
first sale, you sue them in a jurisdiction that would treat GPL as a
contract).



A bare license *is* a contract.

Whether express or implied, a license is a contract 'governed by ordinary
principles of state contract law.'; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d
917, (United States Court of Appeals for the Federal Circuit 1995)

Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332, grants
exclusive jurisdiction for infringement claims to the federal courts, those
courts construe copyrights as contracts and turn to the relevant state law to
interpret them.; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d
749, (United States Court of Appeals for the Seventh Circuit 2006)

See Professor Micheal Davis explain this fact to Richard Stallman in 1999.
http://lists.essential.org/upd-discuss/msg00131.html

Sincerely,
Rjack

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Re: Circumventing the GPL

2008-07-22 Thread John Hasler
Sure, you could buy Debian CD sets from CheapBytes, throw away the source
CDs, and sell the binary ones.  So what?  Are suggesting that company B
contract with company A to do this?  If so company A is company B's agent
and the GPL is violated, not circumvented.
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL

2008-07-22 Thread rjack

Hyman Rosen wrote:

It occurs to me that in the U.S. there is a relatively easy
way to circumvent the requirement of giving away source code
for GPLed software.


You assume the GPL is enforceable and then scheme to circumvent it, but the 
license is preempted by 17 USC sec 301. You can't circumvent a copyright 
license that is intrinsically unenforceable.


Scheme no more my lad. Take up crochet or needlepoint.

Sincerely,
Rjack

--- [I]f an extra element is required instead of or in addition to the acts of 
reproduction, performance, distribution or display in order to constitute a 
state-created cause of action, there is no preemption, provided that the extra 
element changes the nature of the action so that it is qualitatively different 
from a copyright infringement claim. Stromback v. New Line Cinema, 384 F.3d 283 
(United States Court Of Appeals for the Sixth Circuit 2004) ---

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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

John Hasler wrote:

Sure, you could buy Debian CD sets from CheapBytes, throw away the source
CDs, and sell the binary ones.  So what?  Are suggesting that company B
contract with company A to do this?  If so company A is company B's agent
and the GPL is violated, not circumvented.


I don't see anything in the GPL that would imply that when
one company hires another to create GPLed software, the two
companies become united into a single entity. The GPL does
not talk about agents.

It's also perfectly legal for one company to pay another to
develop modified works derived from GPLed code, and to pay
that company more money in exchange for not distributing the
software to anyone else. The software developer delivers the
multiple copies of sources and binaries to the hiring company,
gets money to not deliver it to anyone else, and is done. The
hiring company uses the first sale doctrine to resell only the
binaries. It never has to accept the GPL. The end users have a
license from the the original developers under the GPL, but no
one from whom they can demand the modified sources.
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Re: Circumventing the GPL

2008-07-22 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 It occurs to me that in the U.S. there is a relatively easy
 way to circumvent the requirement of giving away source code
 for GPLed software.

 Company A prepares a work derived from GPL-licensed code.
 Company B purchases copies of this work from Company A.
 For each copy purchased, Company A sends Company B two disks,
 one with the binaries and one with the sources. Company A has
 thus completely discharged its duties under the GPL. Then
 Company B turns around resells only the binary disks to its
 customers, but not the source. Company B is allowed to do this
 under the First Sale Doctrine, and therefore does not need a
 license to resell the software. The customers of Company B
 have no one from whom they can demand source code, and thus the
 GPL is circumvented.

Where is the point in throwing away valuable material?  Where is the
point in paying A for copying source and binaries _AND_ then make you
unable to do copies yourself?

I mean, it's like circumventing robbery laws by withdrawing money from
your own bank account pointing your gun on an ATM all the while.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-22 Thread Alexander Terekhov

John Hasler wrote:
 
 Sure, you could buy Debian CD sets from CheapBytes, throw away the source
 CDs, and sell the binary ones.  So what?  Are suggesting that company B
 contract with company A to do this?  If so company A is company B's agent
 and the GPL is violated, not circumvented.

An agent relationship is established by authorization to act on behalf
(in the name) of authorizing person. The consequence of such
relationship is that contracts entered by the agent (within the scope of
agent contract) are enforceable against the authorizing person. What
does that have to do with the GPL and A + B scenario, exactly? Please
explain in details, uncle Hasler (including the pesky detail that
someone has to prove existence of agent contract... and giving attention
to the GPL concession that Acceptance Not Required for Having Copies).
TIA.

chuckles

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.)
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Re: Circumventing the GPL

2008-07-22 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 John Hasler wrote:
 Sure, you could buy Debian CD sets from CheapBytes, throw away the
 source CDs, and sell the binary ones.  So what?  Are suggesting that
 company B contract with company A to do this?  If so company A is
 company B's agent and the GPL is violated, not circumvented.

 I don't see anything in the GPL that would imply that when
 one company hires another to create GPLed software, the two
 companies become united into a single entity. The GPL does
 not talk about agents.

You mean if I pay somebody to drop a brick from a window when I signal
him, I am not accountable for murder?

 It's also perfectly legal for one company to pay another to
 develop modified works derived from GPLed code, and to pay
 that company more money in exchange for not distributing the
 software to anyone else. The software developer delivers the
 multiple copies of sources and binaries to the hiring company,
 gets money to not deliver it to anyone else, and is done. The
 hiring company uses the first sale doctrine to resell only the
 binaries.

You'll have a hard time explaining to the judge that this first company
was not acting on your behalf and is an independent seller of
prepackaged software.

A really hard time.

The difference between computers and judges are that neither considers
it funny if you try meeting the letter of the law while violating its
intent.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

Where is the point in throwing away valuable material?  Where is the
point in paying A for copying source and binaries _AND_ then make you
unable to do copies yourself?


That way Company A gets to have its cake and eat it to.
It leverages available GPLed software so that the software
it needs can be developed faster, and it prevents the source
of the modified software from becoming visible to anyone else
other than itself and the developers, so that it can gain
competitive advantage and withhold secrets.
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

You mean if I pay somebody to drop a brick from a window

 when I signal him, I am not accountable for murder?

If I hire a company to develop a program for me, that
company is not me. I pay money, I provide a specification,
they deliver the software to me, and that's that. If I
hire a tailor to make me a suit, he and I do not become
one entity.


You'll have a hard time explaining to the judge that this first

 company was not acting on your behalf and is an independent seller
 of prepackaged software.

That's not hard at all. Let's say I'm a phone compnay,
just for example, and I've developed a new fiber optic
system for which I need routers. I contract with a
company who knows how to build routers, give them specs,
and they build hardware and software for it. Then when
my customers want the routers, I buy a bunch from the
router company and sell them to my customers. Unless
I've arranged otherwise, the router company is going to
keep the copyright to the software they've developed,
which is just as I want it.
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Re: Circumventing the GPL

2008-07-22 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 You mean if I pay somebody to drop a brick from a window
 when I signal him, I am not accountable for murder?

 If I hire a company to develop a program for me, that
 company is not me. I pay money, I provide a specification,
 they deliver the software to me, and that's that.

That's the same if I pay somebody to drop a brick when I signal him.

-- 
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Re: Circumventing the GPL

2008-07-22 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 Where is the point in throwing away valuable material?  Where is the
 point in paying A for copying source and binaries _AND_ then make you
 unable to do copies yourself?

 That way Company A gets to have its cake and eat it to.

I was asking where the point was for B.

-- 
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

I was asking where the point was for B.


B gets handsomely paid by A.
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

That's the same if I pay somebody to drop a brick when I signal him.


It's not illegal to hire a company to develop software
to your specifications, allow them to retain all rights
to that software, and just buy copies from them.

Any software vendor who accepts suggestions from customers
is doing the same.
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

B gets _paid_ by A and yet receives the disks by first _sale_ rather
than acting as an agent of A?  You'll have a _really_ hard time selling
that to a judge.


A gives specifications to B. B develops the software.
A buys a bunch of copies of the software from B and
resells the copies to its own customers. I don't know
why you find this concept so strange. This kind of
arrangement must be ubiquitous in the industry.

Note, by the way, that this is similar to a model that's
often proposed for how people can make money from free
software. A company pays a developer to develop customized
free software, but the developer retains rights to it and
can further develop it for other customers.
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Re: Circumventing the GPL

2008-07-22 Thread David Kastrup
Hyman Rosen [EMAIL PROTECTED] writes:

 David Kastrup wrote:
 I recommend that you reread the thread and decide on who you call A and
 who B.  It will make it easier for the judge to figure out things.

 Oops, I did mix them up. But in any case, there is
 no law of copyright that says that if I ask someone
 to develop software, even if I tell them the details
 of what I want, that I become the owner of the
 developed software.

You don't need to become the owner.  It is enough if you become
_responsible_.  If I pay somebody to drop a brick when I tell him, I
don't become legally untouchable if he happens to be the owner of the
brick.

 There is no law that prevents me from buying individual copies of the
 software. And there is a law in the U.S. that says I may resell those
 copies without any license.

Again: we have judges and not robots for interpreting the law.  The law
is just words.  The words carry literal meaning and intent.
Sidestepping the intent is not something that will make life easy for
you in the court.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

I recommend that you reread the thread and decide on who you call A and
who B.  It will make it easier for the judge to figure out things.


Oops, I did mix them up. But in any case, there is
no law of copyright that says that if I ask someone
to develop software, even if I tell them the details
of what I want, that I become the owner of the
developed software. There is no law that prevents me
from buying individual copies of the software. And
there is a law in the U.S. that says I may resell
those copies without any license.
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

David Kastrup wrote:

You don't need to become the owner.

 It is enough if you become _responsible_.

Enough for what? I just don't understand what you're
saying. Remember, the GPL is just a copyright license.
It has no notion of responsibility. It states only
whether and how covered software may be conveyed when
copyright law would otherwise forbid it.

The software developers retain the copyright of the
works they create, regardless of who specified the
behavior of the software. Do you disagree with that?

They may sell copies of this software, as long as they
keep to the provisions of the GPL, which they do by
sending a copy of the source with each copy of the binary.
Do you disagree with that?

The buyers of this software may in turn sell the copy
they received, without requiring any license at all, at
least in the U.S., because of the first sale doctrine.
They may sell the binary part without the source part.
Do you disagree with that?

Now these secondary buyers have no one from whom to
demand source code. The developers have discharged their
GPL obligations by shipping source to the first buyers.
The first buyers who resold the software don't have any
obligations at all - they may as well have sold a book
to a used-book store. Do you disagree with that?
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

Alexander Terekhov wrote:

The courts should simply not enforce invalid contracts. LAW 101. To
date, the courts did NOT enforce the GPL. And violations flourish.


What a strange notion! The courts vigorously enforce copyright
on songs and movies. And violations flourish.
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Re: Circumventing the GPL

2008-07-22 Thread rjack

Ciaran O'Riordan wrote:

rjack [EMAIL PROTECTED] writes:

[...]the license is preempted by 17 USC sec 301.[...]


And since invalidating the GPL would be worth billions to some companies, how
 do you explain that your discovery (and that of Alexander Terekhov) are 
ignored by everyone in a position to act?




I see you have shifted the topic from the specific legal enforceability question
under U.S. law to that of a speculative question of motivations based upon
dubious assumptions.

Who, pray tell, are these mysterious billion dollar companies and what would
their business model resemble?

Sincerely,
Rjack

-- [I]f an extra element is required instead of or in addition to the acts of
reproduction, performance, distribution or display in order to constitute a
state-created cause of action, there is no preemption, provided that the extra
element changes the nature of the action so that it is qualitatively different
from a copyright infringement claim. Stromback v. New Line Cinema, 384 F.3d 283
(United States Court Of Appeals for the Sixth Circuit 2004) --
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

John Hasler wrote:

 It also means that B is free to sell or give the software, source
and all, to anyone, including A's customers.


But A and B can enter into an arrangement where B will
agree not to do this, perhaps with A paying B for this.
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Re: Circumventing the GPL

2008-07-22 Thread Ciaran O'Riordan

rjack [EMAIL PROTECTED] writes:
 I see you have [...]

What I've done is I've applied Richard Feynman's simple rule about theories:
if it disagrees with experiment it is wrong.

You proposed a controversial, completely unproven idea of copyright law that
would have certain consequences.  I pointed out that the observed
consequences in the real world do not match the consequences that would be
seen if your theory was right.

That makes your idea look wrong.

 Who, pray tell, are these mysterious billion dollar companies and what would
 their business model resemble?

Microsoft is an obvious example.  Making problems for GPL'd software is a
big priority for them.  This is clear from the millions they pumped into SCO
and the press statements that Bill and his replacement have made about the
GPL.


-- 
Ciarán O'Riordan, +32 477 36 44 19, http://ciaran.compsoc.com/

Support free software, join FSFE's Fellowship: http://fsfe.org

Recent blog entries:

http://fsfe.org/en/fellows/ciaran/ciaran_s_free_software_notes/using_latex_to_make_pdf_documents_with_japanese_characters
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http://fsfe.org/en/fellows/ciaran/ciaran_s_free_software_notes/links_india_pats_clipperz_freegis_rms_emacs
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Re: Circumventing the GPL

2008-07-22 Thread Hyman Rosen

John Hasler wrote:

The sale is then no longer an arms-length transaction.

 A US Federal judge will see right through the subterfuge
 and tell A that it is a distributor.

Why does it have to be arms-length? Where is the subterfuge?

A software developer is perfectly free to enter an arrangement
whereby he agrees *not* to distribute software. If the software
is GPLed, he cannot require recipients not to distribute, but
he is free to choose not to distribute his own software, and to
accept payment for doing so.
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Re: Circumventing the GPL

2008-07-22 Thread John Hasler
I wrote:
 The sale is then no longer an arms-length transaction.  A US Federal
 judge will see right through the subterfuge and tell A that it is a
 distributor.

Hyman writes:
 Why does it have to be arms-length? 

In order to be a first sale under the intent of the law.  First sale
clearly contemplates a transaction such as walking into a bookstore,
grabbing a book, plunking down $20, and walking out.  You propose a
contract wherein the seller gives up some of his exclusive rights as
author.  Surely you don't expect the court to let A get away with not
providing source when A has acquired the exclusive right to do so.

 Where is the subterfuge?

In the attempt to evade the intent of the GPL.

 A software developer is perfectly free to enter an arrangement whereby he
 agrees *not* to distribute software. If the software is GPLed, he cannot
 require recipients not to distribute, but he is free to choose not to
 distribute his own software, and to accept payment for doing so.

Yes, of course he is.  There is nothing illegal about what you propose.  It
just won't work as a GPL evasion.

Do you think no one has ever tried to use a similar scheme to evade his
obligations before?  The courts have seen it all.
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL ...

2006-05-31 Thread Alexander Terekhov

Unruh wrote:
[...]
 Why do I have to? You came up with the AFC test. The OP suggested a path of
 influence, which gave a possibly suggestive link suggesting that copyright

ROFL. 

Uh. 

A path of influence? A possibly suggestive link suggesting something?

ROFL.

regards,
alexander.
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Re: Circumventing the GPL ...

2006-05-30 Thread Alfred M. Szmidt
The copyright holder(s) can always relicense a work under whatever
license they want.  One doesn't circumventing anything by doing so.


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Re: Circumventing the GPL ...

2006-05-30 Thread John Hasler
Nick Kew writes:
 The browser engine is developed with apple and based on Safari.  Which is
 in turn based on khtml/konqueror.

First I've heard that.  Are you sure you don't mean that it uses QT?

 Which is KDE, which is GPL.

khtml is LGPL.
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: Circumventing the GPL ...

2006-05-30 Thread David Kastrup
Alexander Terekhov [EMAIL PROTECTED] writes:

 Nick Kew wrote:
 
 http://www.theregister.co.uk/2006/05/30/nokia_goes_open_source/
 
 Nokia is to open its browser engine under a BSD license.
 
 The browser engine is developed with apple and based on Safari.
 Which is in turn based on khtml/konqueror.  Which is KDE,
 which is GPL.  So that's a derivative of GPL software appearing
 under a BSD license, or so it would appear.
 
 Now, presumably Apple negotiated non-GPL terms with the KDE folks
 for their use of the code in Safari.  Did those terms include
 permission to open-source a derived product under non-GPL terms?
 If so, it would appear to have effectively killed copyleft on
 this particular software.

 chuckles 

 Read up something on the AFC test. And kindly piss off with your 
 GNUish/SCOish based on derivative theories in the meantime.

Well, this is _gnu_.misc.discuss as well as uk.comp.os.linux, and
actual inclusion of lines of code is not a derivative theory
particular to the GNU project.  It's the standard for copyright pretty
much worldwide.

Now SCO is a different matter: they try pulling some sort of
contractual violation theory based on lines they don't even specify.
Now that's walking on thin air.

What code lines Nokia's browser is actually using will remain to be
seen.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL ...

2006-05-30 Thread Alexander Terekhov
You too, dak, please kindly piss off. With your idiotic communication 
through non-standardized interface derivative theory, to begin with.

And read up something on software compilations (see 17 USC 101; 
software is protected as literary works) vs software derivatives 
(modified protected expression per AFC test), which has really
nothing to do with linking/communicating. Except in the GNU Republic,
that is.

regards,
alexander.
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Re: Circumventing the GPL ...

2006-05-30 Thread David Kastrup
Alexander Terekhov [EMAIL PROTECTED] writes:

 You too, dak, please kindly piss off.

Why should a GNU maintainer not discuss miscellaneous things on
gnu.misc.discuss?  Just because you are a spoilt brat craving
undivided attention for your wild theories (isn't he adorable when he
mimics a lawyer?), does not mean that one needs to accommodate your
desires in a forum intended for discussion among adults.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: Circumventing the GPL ...

2006-05-30 Thread Unruh
Alexander Terekhov [EMAIL PROTECTED] writes:


Nick Kew wrote:
 
 http://www.theregister.co.uk/2006/05/30/nokia_goes_open_source/
 
 Nokia is to open its browser engine under a BSD license.
 
 The browser engine is developed with apple and based on Safari.
 Which is in turn based on khtml/konqueror.  Which is KDE,
 which is GPL.  So that's a derivative of GPL software appearing
 under a BSD license, or so it would appear.
 
 Now, presumably Apple negotiated non-GPL terms with the KDE folks
 for their use of the code in Safari.  Did those terms include
 permission to open-source a derived product under non-GPL terms?
 If so, it would appear to have effectively killed copyleft on
 this particular software.

chuckles 

Read up something on the AFC test. And kindly piss off with your 

And exactly how does the AFC (I assume you mean Abstraction, Filtration,
Comparison test) apply here?

GNUish/SCOish based on derivative theories in the meantime.

You mean the ones listed in the copyright laws?
Derived work is a term used there.

Whether or not Nokia's browser is a derived work of Konqueror is of course
something that would have to be determined, but the causal relationship at
least makes a prima facia case for the possibility. 

Note that if the claims are correct, then the GPL suffered way back when
when Apple made the closed source. And note that GPL is a license from teh
originator, and the originator has the right to license under whatever
terms he/she/they desires. That K licenses to A and then to N has no impact
whatsoever on K licensing to G under different terms. N's actions with
respect to G's license are irrelevant. 
The owner of the copyright is allowed to make any end runs they desire
around the GPL.



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Re: Circumventing the GPL ...

2006-05-30 Thread Alexander Terekhov

Unruh wrote:
[...]
 And exactly how does the AFC (I assume you mean Abstraction, Filtration,
 Comparison test) 

Yes.

  apply here?

It used to determine if there is copyright infringement in alleged 
derivative computer program work.

 
 GNUish/SCOish based on derivative theories in the meantime.
 
 You mean the ones listed in the copyright laws?
 Derived work is a term used there.

Derived work? Where? Chapter and verse, please.

regards,
alexander.
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Re: Circumventing the GPL ...

2006-05-30 Thread Unruh
Alexander Terekhov [EMAIL PROTECTED] writes:


Unruh wrote:
[...]
 And exactly how does the AFC (I assume you mean Abstraction, Filtration,
 Comparison test) 

Yes.

  apply here?

It used to determine if there is copyright infringement in alleged 
derivative computer program work.

Yes, and you have made the comparison? If not, why is it relevant here?


 
 GNUish/SCOish based on derivative theories in the meantime.
 
 You mean the ones listed in the copyright laws?
 Derived work is a term used there.

Derived work? Where? Chapter and verse, please.

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Re: Circumventing the GPL ...

2006-05-30 Thread Unruh
Alexander Terekhov [EMAIL PROTECTED] writes:


Unruh wrote:
[...]
 Yes, and you have made the comparison? 

Am I claiming that that's a derivative of GPL software appearing
under a BSD license? You're suffering typical GNUish/SCOish syndrome.

??? The AFC test is a test to see whether or not there is copyright
protected material contained withing the package. Have you made the
comparixon? If not why are you telling us to look to AFC?
  I have no idea what syndrome you think I am suffering from.


http://www.byte.com/documents/s=8276/byt1055784622054/0616_marshall.html
(SCO Owns Your Computer ... All Your Base Are Belong To Us)

quote

GPL

GPL has the same derivative rights concept [as UNIX], according to 
Sontag... 

/quote

And this quote is supposed to say what? What is its relevance to the
discussion. The question was, is Nokia allowed to release its version with
BSD license given that the original was released under the GPL. 
So two questions-- does the Nokia version contain protected parts of the
original, and did the Nokia version derive from that GPL original. 
(Eg, as the OP said, Nokia's version could contain code which is copyright
protected from the original, but the original authors could have licensed
the code to Nokia under a separate license from the GPL. Thus even if the
code contains protected code from the GPL release, that is irrelevant,
since it did not derive from that GPL licensed version but from another
licensed version.)


regards,
alexander.
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Re: Circumventing the GPL ...

2006-05-30 Thread Unruh
Alexander Terekhov [EMAIL PROTECTED] writes:


Unruh wrote:
 
 Alexander Terekhov [EMAIL PROTECTED] writes:
 
 Unruh wrote:
 [...]
  Yes, and you have made the comparison?
 
 Am I claiming that that's a derivative of GPL software appearing
 under a BSD license? You're suffering typical GNUish/SCOish syndrome.
 
 ??? The AFC test is a test to see whether or not there is copyright
 protected material contained withing the package. 

No. It's about infringing the right on making a derivative work. IOW, 

??? Is there some gramatical problem with that sentence.

RMS' own typical Verbatim copying and redistribution of this entire 
[blah blah] are permitted provided this notice is preserved covers 
compilations (packages), but not derivatives of his (kinda literary) 
idiotic work(s). My, what a proprietor! (It's akin to GNUish mere 
aggregation vs GNUish derived (derived falls under the GPL... or 
else... GNUish mere aggregation of GNUish derived stuff with 
something else aside for a moment).

Your passions are overriding your English.


   Have you made the
 comparixon? If not why are you telling us to look to AFC?

Because *you* have to make a (an initial) comparixon, not me.

Why do I have to? You came up with the AFC test. The OP suggested a path of
influence, which gave a possibly suggestive link suggesting that copyright
code could be in the Nokia software. 


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