(OT) - NOT A Major Blow to Copyleft Theory

[Chuck Swiger]

On Feb 8, 2008, at 11:04 AM, Alexander Terekhov wrote:
[ ... ]
> The heart of the provision is its first sentence:
>
>    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.
>
> But it goes on to state exceptions to this rule (primarily for the
> rental of phonorecords and software) and exceptions to these  
> exceptions,
> not part of the original Copyright Act of 1976.
>
> But if one has permission to make lawful copies, one does not need any
> additional permission to distribute those copies to the public.

If you buy a record lawfully and then wish to resell that particular  
copy to someone else, the copyright owner cannot prevent this.  That  
doesn't mean that you can make many copies of that record and sell  
them, unless you were granted permission not only to distribute but to  
make such duplicates.

In the case of a record, you obtain a legitimate copy by agreeing to  
purchase it from a retail outlet for a particular price (or perhaps  
buy it online from iTunes, Amazon, etc).  In the case of proprietary  
software, you obtain a legitimate copy by agreeing to purchase it from  
the vendor or a reseller, and then to use it you generally end up  
clicking through and at least nominally agree to a shrinkwrapped EULA  
before you can actually install and run the program.  That EULA grants  
you permission to install a copy of the software from the source media  
(perhaps a CD or DVD) onto one machine, or perhaps several if you've  
purchased a multiuser license.

In the case of Free and Open Source software, one can often download  
the software to your machine for free from a FTP or web site, but this  
process of making a copy for yourself is contingent upon having  
permission to do so.  That permission is granted by your agreement to  
the terms of the license of this software, just as it is for the  
proprietary software case mentioned above.

> Note that the GPL does not acknowledge Section 109 when it states
> "However, nothing else grants you permission to modify or distribute
> the Program or its derivative works."

That's right.  If you already have a legitimate copy of a GPL'ed  
software, you have the right to give that copy to someone else even if  
the copyright holder does not authorize it.  However, that someone  
else could generally obtain their own copy, so this appears to mostly  
be moot.

> It also ignores Section 117 when, 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".

Also correct.  For example, individuals have the right to modify the  
Linux kernel sources to run a proprietary kernel module which does not  
adhere to the terms of the GPL, perhaps a binary-only video driver  
from nVidia or ATI, and this situation is something which is fully  
permitted by US copyright law even if the resulting combination of  
GPL'ed and binary-only software could not be redistributed to others.

> As for Eben Moglen's assertion that "Licenses are not contracts" in
> http://www.gnu.org/philosophy/enforcing-gpl.html (previously cited),
> he offers little justification for the statement:
>
>   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.
>
> In light of Sections 109 and 117 (and possibly other exceptions),
> that statement is wrong with respect to United States copyright law.
> Just look at the wording of Section 109 -- "is entitled, WITHOUT THE
> AUTHORITY OF THE COPYRIGHT OWNER".

Yes, fine-- the GNU project sometimes leaves out important details in  
the positions mentioned on their website or mailing lists...so take  
this discussion up with them, if you want to see a change there.  It  
doesn't seem to be particularly useful to keep bringing up these  
threads on the OSI license-discuss list.

-- 
-Chuck