(OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Sat Feb 9 12:22:15 UTC 2008

On Feb 8, 2008 11:08 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Chuck Swiger (chuck at codefab.com):
> [much quoted-and-refuted Terekhov ankle-biting snipped]

Hey Rick, Lee Hollaar the author of
http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his
treatise, not the Foreword written by the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee) wrote
what Chuck Swiger quoted and you snipped. Chuck Swiger and other
respondents refuted nothing and in fact just proved Lee Hollaar's
argument (see below) that incorrect wording of the GPL "misleads one
in thinking that the only way to redistribute a lawful copy is to
accept the License."

> > >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
> >
> > 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.
> All Prof. Moglen seems to have "left out" in this particular is the
> phrase "...except of course for rights granted by statute and thus
> not needing a licensor's permission in the first place".  Which is
> really bleedin' obvious, and not actually worth spending time on.

Really? Well, here's what Lee Hollar who worked with the Chief Judge
and the Chief Intellectual Property Counsel to the Senate Judiciary
Committee on Internet, copyright, and patent issues as a Committee
Fellow had to say about the GNU GPL wording
version 3 (note that most of it applies to GNU GPL wording version 2 as well).

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

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

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

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

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
noted by hollaar


"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

 -- Brief of Appellees (CAFC 2008-1001).

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