GPL Issue

[dtemeles at nvalaw.com]

Arnoud,

Is it more accurate to say that the party downloading GPL'd software  
under European law has agreed to the GPL license and is subject to the  
terms of such license as may be modified by Article 5?  If not, then  
couldn't one assert that the downloading party didn't lawfully acquire  
the software in the first place?  The issue would be just as relevant  
in the proprietary license arena.

BTW, there is a similar concept under US copyright law regarding use  
and modification of software by or on behalf of an owner of a lawful  
copy of the software (see, e.g., 17 USC 117).

Dave


Quoting Arnoud Engelfriet <arnoud at engelfriet.net>:

> David Woolley wrote:
>> In the UK, it is the case that using software is protected by copyright,
>> but my understanding is that in the USA this is not the case, and the
>> GPL is drafted with that situation in view.
>
> True, under European copyright laws (following directive 91/250/EC)
> executing software is covered under copyright. However that same directive
> also provides for a basic usage right granted by law:
>
> Article 5 Exceptions to the restricted acts
>
> 1. In the absence of specific contractual provisions, the acts referred to
> in Article 4 (a) and (b) shall not require authorization by the rightholder
> where they are necessary for the use of the computer program by the lawful
> acquirer in accordance with its intended purpose, including for error
> correction.
> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML
>
> Someone who downloads GPL-ed software is a 'lawful acquirer' even when he
> does not accept the GPL. He therefore has the right to use the software "for
> its intended purpose".
>
> In that case the user has not accepted the contractual limitation of  
>  liability
> (yes, the GPL is a contract under European law). You would have to argue
> under basic tort law whether damages caused by the bug have to be
> compensated. It seems unlikely - someone downloads free stuff from the big
> bad Internet and then asks money if the software has a bug?
>
> Regards, Arnoud
>
> --
> IT lawyer, blogger and patent attorney ~ Partner at ICTRecht.nl   
> legal services
>         http://www.arnoud.engelfriet.net/ ~ http://www.iusmentis.com/
>