'Browse-wrap' licenses invalid

[Eric Jacobs]

"Carol A. Kunze" wrote

> The GPL does more than grant additional rights.  It also places an 
> important limitation on a user's right to license derivative works in 
> which she owns the copyright.

There is no such right in the general case. §103 of Title 17 reads, in
part:

> (a) The subject matter of copyright as specified by section 102 includes
> compilations and derivative works, but protection for a work employing
> preexisting material in which copyright subsists does not extend to any
> part of the work in which such material has been used unlawfully.

You cannot claim copyright on a work that you had no right to create.


> Under the copyright law, the author of an authorized derivative work 
> would have the right to decide under what conditions (license) to 
> distribute that work.

Of course. But where does that authorization come from? The GPL! Without
the GPL, the user would have no right whatsoever to create or license
any derivative work under any license. The GPL has increased the number
of possible licenses for the derivative work from 0 to 1.


> So clause 5 says : Therefore, by modifying or distributing the Program 
> (or any work based on the Program), you indicate your *acceptance* of 
> this License to do so, and all its terms and conditions for copying, 
> distributing or modifying the Program or works based on it.

It can say that because modification and distribution are exclusive
rights of the author, _and_ because there is no other way to do those
legally except by using the GPL.

The latter half isn't always true! Suppose the author of a GPL program
offers an alternative, commercial licensing scheme, and I buy it. Suppose
the commercial license grants me the rights to modify and distribute the
program, and I do so. Do I indicate my acceptance in Clause 5 of the GPL
by modifying and distributing the Program? No! Clause 5, as with the
rest of GPL, only works because the exclusive rights offered are not
available from anywhere else.

> To this extent, the GPL does more than just add to what one would get 
> under the Copyright Act.


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