(OT) - Major Blow to Copyleft Theory

[Alexander Terekhov]

On 8/28/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> Lawrence Rosen wrote:
> > I note that other licenses handle the
> > matter of damages more precisely. For example, OSL 3.0 provides that "Any
> > use of the Original Work outside the scope of this License or after its
> > termination shall be subject to the requirements and penalties of copyright
> > or patent law in the appropriate jurisdiction."
>
> And GPLv2 says:
>
> "You are not required to accept this License, since you have not signed
> it. However, nothing else grants you permission to modify or distribute
> the Program or its derivative works. These actions are prohibited by law
> if you do not accept this License.".

To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html),

http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b

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In article <barmar-6E37FC.18034631072... at comcast.dca.giganews.com> Barry
Margolin <bar... at alum.mit.edu> writes:
[Presumably quoting from the GPL ...]

>  5. You are not required to accept this License, since you have not
>signed it.  However, nothing else grants you permission to modify or
>distribute the Program or its derivative works.  These actions are
>prohibited by law if you do not accept this License.

Just because the GPL states something doesn't make it so.  In particular,
there are a couple of mistatements of the law there.

The first is that "nothing else grants you permission to modify ...
the Program."

17 USC 117(a) DOES grant that permission in a special, but important
instance:

       Notwithstanding the provisions of section 106, it is not an
    infringement for the owner of a copy of a computer program to
    make or authorize the making of another copy or adaptation of
    that computer program provided:

    (1) that such a new copy or adaptation is created as an essential
    step in the utilization of the computer program in conjunction
    with a machine and that it is used in no other manner ...

There is nothing in the GPL that says that a person is not the "owner
of a copy" of the program.  So, as long as the adaptation (modification)
is "an essential step in the utilization of the computer program in
conjunction with a machine" it is permitted without the GPL.

The second is that "nothing else grants you permission to ...
distribute the program."

17 USC 109(a) states that:

       Notwithstanding the provisions of section 106(3), the owner
    of a particular copy or phonorecord lawfully made under this
    title, or any person authorized by such owner, is entitled,
    without the authority of the copyright owner, to sell or otherwise
    dispose of the possession of that copy or phonorecord.

However, you can't dispose of the possession of a computer program by
rental or lending.  See 17 USC 109(b).

So, a more accurate statement would be:

    However, nothing else grants you permission to modify AND
    distribute the Program or its derivative works.  These actions are
    prohibited by law if you do not accept this License.

(The stuff about signing the license is a little wierd, too.  It's not
really clear the point that is being made.  Perhaps it's trying to say
that since you haven't signed the license, you haven't accepted its
terms yet, but will have to if you are going to perform an act that
requires a permission giving in the license.)
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http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803

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>"Licenses are not contracts: the work's user is obliged to remain
>within the bounds of the license not because she voluntarily promised,
>but because she doesn't have any right to act at all except as the
>license permits." [quoting Eben Moglen]

That might be true IF "she doesn't have any right to act at all except
as the license permits."  But as I have pointed out here and in my
comments to the FSF regarding the new GPLv3, that is not the case.
United States copyright law provides a number of exceptions to the
exclusive rights of the copyright owner, including "first sale" as
covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner
of a copy of a computer to reproduce or adapt it if necessary to use
it.

The convenient redefinition of things in the GPL reminds me of a
quote from Abraham Lincoln:

     How many legs does a dog have if you call the tail a leg?
     Four.  Calling a tail a leg doesn't make it a leg.
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[... GPLv3 ...]

http://groups.google.com/group/gnu.misc.discuss/msg/edb4cc1971b7ca49

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comment 388: Not a correct statement of copyright law
Regarding the text: However, nothing else grants you permission to
propagate or modify the Program or any covered works.
In section: gpl3.notacontract.p0.s3

Submitted by: hollaar
comments:

This is not a correct statement of copyright law, at least in the
United States. With respect to "propagate", it is likely a tautology
because of the defintion of "propagate" covering only things "that
require permission under applicable copyright law". But for "modify",
17 U.S.C. 117 permits the "owner of a copy of a computer program" to
make an "adaptation" in particular circumstances, and makes it clear
that making that adaptation does not "infringe copyright if you do not
accept this License." It also does not seem to recognize the "first
sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy "without the authority of the copyright owner".
Perhaps the interplay between the definition of "propagate" and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.
noted by hollaar

comment 389: Not a correct statement
Regarding the text: You may not propagate, modify or sublicense the
Program except as expressly provided under this License.
In section: gpl3.termination.p0.s1
Submitted by: hollaar
comments:

As I noted in more detail in my comments on Paragraph 9, this is not
an accurate statement. In the United States, 17 U.S.C. 109 ("first
sale") and 117 ("computer programs") allow the owner of a
lawfully-made copy to modify it in certain circumstances and to
redistribute it without permission of the copyright owner.
noted by hollaar

comment 390: Permission may not be required for use
Regarding the text: which means permission for use
In section: gpl3.licensecompat.p6.s1
Submitted by: hollaar
comments:

In the United States, at least, permission may not be required to use
a computer program if the user is the lawful owner of a copy. See 17
U.S.C. 117. United States copyright law does not give the copyright
owner a right to control use (although the DMCA does provide sort of
an access right if the information is protected by DRM, see 17 U.S.C.
1201(a), which does not apply here because of the anti-DRM language).
Even if you regard the "use" of the computer program as a
"reproduction" because it is being copied into memory (see MAI v.
Peak, http://digital-law-online.info/cases/26PQ2D1458.htm), that
reproduction is specifically allowed by 17 U.S.C. 117 for the lawful
owner of the copy of the computer program.
noted by hollaar

comment 570: Just saying it doesn't make it so
Regarding the text: No covered work constitutes part of an effective
technological protection measure
In section: gpl3.drm.p1.s1
Submitted by: hollaar
comments:

A covered work will be "part of an effective technological protection
measure" (a term that mimics the DMCA "technological measure that
effectively controls access to a work", much like "derived from"
mimics "derivative work") based on what it does, not what you say. For
example, you can't exempt yourself from patent law by simply stating
that the "covered work is not a process, machine, manufacture, or
composition of matter" (the classes of patentable things in the United
States).
noted by hollaar
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regards,
alexander.