GPL Issue

[dtemeles at nvalaw.com]

Quoting Walter van Holst <walter.van.holst at gmail.com>:

> The difficulty lies in the fact that downloading the GPL'd software
> cannot be construed as acceptance of the terms of the GPL since the
> licensee has not been provided the terms of the license before actually
> acquiring the code. Precisely the same issue as with the shrink-wrap
> EULAs. I thought that by now that horse had been flogged to death.

Notwithstanding the case in the Netherlands holding that anyone who  
obtains a copy in good faith is a lawful acquirer, apparently this  
horse is still alive and well in Europe.  I'm no expert in European  
law by any stretch, but this article:  
www.lex-electronica.org/docs/articles_63.pdf, discusses the point in  
detail and claims that the majority view is that a "lawful acquirer"  
necessarily implies one who is licensed to use the software as opposed  
to one who merely obtains a copy without breaking the law (e.g.,  
downloads a copy).
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on pp. 6 - 7 the author notes:

"The European Commission would seem to agree with the majority of  
opinion in the Netherlands, which considers the ?lawful acquirer? to  
be the one who is authorised to use the software in accordance with a  
purchase or licence contract from the copyright owner or his assignee  
and not to be the one who legally obtained a copy of the program. In  
its report on the implementation and effects of Directive 91/250/EEC  
on the legal protection of computer programs, the European Commission  
observes that divergences of views subsist however as to the meaning  
of ?lawful acquirer?. Several Member States have transposed this  
notion by using the term ?lawful user? i.e., a person having a right  
to use the program. The Commission shares the view of some  
commentators that ?lawful acquirer? does in fact mean a purchaser,  
licensee, renter or a person authorised to use the program on behalf  
of one of the above."

Further on in p. 7:

"With this definition of a ?lawful acquirer? in mind, one could  
reasonably argue that anyone having a licence to use an open source  
computer program is a ?lawful acquirer? of that program within the  
meaning of the Copyright Act, provided that the licence accompanying  
the product was validly entered into."
_____________________________________

It would appear that we still have a way to go in both Europe and the  
US before our laws effectively and clearly address the issue in the  
software context.