BSD-like licenses and the OSI approval process

[Alexander Terekhov]

On 10/16/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
[...]
> > 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."
>
> GPLv3 makes it clear it doesn't remove existing consumer rights (as if
> any copyright license could do that) by adding "This License
> acknowledges your rights of fair use or other equivalent, as provided by
> copyright law."

The term "fair use" is unique to the United States; a similar
principle, fair dealing, exists in some other common law
jurisdictions.

But it has really nothing to do with "first sale" (a similar
principle, "copyright exhaustion" rule, exists in the EU).

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, 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 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
-----

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I need look no further
than Groklaw itself. 'PJ' wants more journalists to use the site as a
resource, so I'll do just that. Below are excerpts from my story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of them, and my
response -- at times taken directly from Groklaw."

                                       -- http://tinyurl.com/2mn3jc