BSD-like licenses and the OSI approval process

[Alexander Terekhov]

On 10/15/07, Arnoud Engelfriet <arnoud at engelfriet.net> wrote:
[...]
> In some circumstances you could impose terms on the recipient
> of your copy, by making those terms a condition of your distributing
> the copy to him. For example, "I will give you a copy, but only
> if you agree not to sue me if the code has bugs". That's not
> putting terms on the BSD work but on the act of distribution
> that you're going to perform.

I agree. For example, "I will give you a copy, but only if you agree
not to enter into copyleft contract and promise me never look at the
source code even if you somehow manage to find it on the net". Or
something like that.

17 USC 109.

This is the codification of the first sale doctrine.  Basically, it
says that if you have a legal copy of a copyrighted work, you do *NOT*
need the permission of the copyright owner to distribute it.

This is why you can sell a book to a used bookstore, without having to
contact the author and get permission.

Checking...

Professor Moglen agrees:

http://linuxplanet.com/linuxplanet/reports/2000/1/

"There's no absence of privity [which isn't required anyway]. If you
sell someone a book she has a right to give it to whomever she
pleases. That's the first-sale rule. "

Now, consider:

    1. Party A makes a GPL'ed program available, on two CDs.  One has the
    program in binary form, and one has the source.

    2. Party B obtains these CDs, and having no interest in the source code,
    gives the source CD away, or perhaps discards it.

    3. Later, Party B no longer has a use for the program, so deletes all
    copies they have made of the binary CD, and then puts the binary CD up
    for sale.

    4. Party C buys the binary CD.

Question: who, if any, is obligated to provide source to Party C (if
Party C wants it)?

As far as I can work out, the answer is no one.  Party A is off the
hook. He distributed the source with the binary, satisfying all of his
GPL requirements.

As for Party B, he is the owner of a copy of the program, legally
obtained, and is entitled under the First Sale Doctrine to sell that
particular copy.

Because of first sale, Party B does not need the copyright owner's
permission to distribute this copy, and so the act of distributing
does not constitute acceptance of the offered license.

This may seem a contrived example, but I think it is going to become
common as GPL'ed code is used in embedded devices.  E.g., suppose
Party A is selling a generic router, or generic PVR, or something like
that, built around a Linux kernel.  What he sells is a circuit board
with a processor, and the GPL'ed code in ROM.  He delivers these
boards and code to his clients, along with a CD with the source.  The
clients put the boards in boxes, add in their application-level code,
to turn the boxes into complete routers or PVRs or whatever, and sell
the boxes to consumers.  Consumers are Party C here.

[end quoting Tim Smith]

Note that the GPLv2 does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works." It also ignores Section 117,
which gives "the owner of a copy of a computer program" the right to
"make or authorize the making of another copy OR ADAPTATION of that
computer program" if it is "an essential step in the utilization of
the computer program in conjunction with a machine".

regards,
alexander.

--
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