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Re: Circumventing the GPL
From: |
Tim Smith |
Subject: |
Re: Circumventing the GPL |
Date: |
Wed, 23 Jul 2008 17:03:16 -0700 |
User-agent: |
MT-NewsWatcher/3.5.3b2 (PPC Mac OS X) |
In article <4887ADFD.E173667C@web.de>,
Alexander Terekhov <terekhov@web.de> wrote:
> http://warmcat.com/_wp/2008/05/23/exhaustion-and-the-gpl/
>
> -----
> Exhaustion and the GPL
That reminds me of a question my professor asked us in copyright law
class when I was in law school, when we were discussing the Betamax
case. I use my VCR to record a movie off of TV so I can watch it later.
Fair use, according the the Supreme Court.
When I'm done watching, can I sell the recording? The copy was lawfully
made. I own the copy. Seems like first sale says I can.
What if I set up a bank of 1000 VCRs, to record 1000 copies? Can I sell
those? That case is tricker, I think. I'm not making the copies for my
personal time shifting now, so maybe that will change the balance in the
fair use analysis. If that makes my copies unlawful, then first sale
does not apply.
In the GPL hypothetical I've discussed before, and that Hyman is now
discussing, there isn't necessarily any intention to "circumvent" the
GPL. The most likely way it would arise, in my opinion, is simply that
company A ships with source because they want to satisfy GPL, and find
that a more convenient way than making the source available for three
years via a written offer. Company B discards the source simply because
they don't find it useful, and it is cheaper and more efficient to not
have to bother dropping the CD in the box. (Even if it takes no effort
at all to include the CD, it is still going to generate support
costs--its presence *will* confuse some customers).
Note: this hypothetical applies to pretty much all licenses, not just
GPL.
But suppose someone actively wanted to circumvent GPL, using first sale?
What if they simply took this approach:
1. Acquire a lawful copy of a GPL binary. Doesn't matter how--download
it from somewhere, compile it from source, whatever.
2. Make copies of the binary. GPL says this is OK.
3. Sell or give away those copies. They are lawfully made copies, and
the person owns those particular copies, so this seems to fall under
first sale.
Note that this differs from my 1000 VCR hypothetical, because there the
copying was not authorized. But GPL authorizes the copying. Oops.
Also note: this is not a problem for a free software license that is
enforced as a contract. With such a license, they have agreed to
distribute source with copies they make, so there will be an action for
breach of contract. And if the contract is written right, that will
terminate their permission to make copies, and stop them dead in their
tracks.
It's *only* the GPL that is susceptible to this blatant circumvention,
due to its perverse insistence on not being a contract, but merely a
bare copyright license only adding to what copyright already allows you
to do.
(I believe I read somewhere...Larry Rosen's book, perhaps...that many
jurisdictions do not recognize bare licenses, and GPL *would* be seen as
a contract on those jurisdictions. Maybe that provides a saving
throw--if someone tries to blatantly circumvent by making copies and
distributing under first sale, you sue them in a jurisdiction that would
treat GPL as a contract).
--
--Tim Smith
Re: Circumventing the GPL, Tim Smith, 2008/07/23
Re: Circumventing the GPL, Tim Smith, 2008/07/23
- Re: Circumventing the GPL, Alexander Terekhov, 2008/07/23
- Re: Circumventing the GPL, Alexander Terekhov, 2008/07/23
- Re: Circumventing the GPL,
Tim Smith <=
- Re: Circumventing the GPL, rjack, 2008/07/23
- Re: Circumventing the GPL, Hyman Rosen, 2008/07/24
- Re: Circumventing the GPL, Hyman Rosen, 2008/07/24
- Re: Circumventing the GPL, Tim Smith, 2008/07/24
- Re: Circumventing the GPL, Alexander Terekhov, 2008/07/24
- Re: Circumventing the GPL, Hyman Rosen, 2008/07/24
- Re: Circumventing the GPL, Hyman Rosen, 2008/07/24
- Re: Circumventing the GPL, Tim Smith, 2008/07/25
- Re: Circumventing the GPL, David Kastrup, 2008/07/25
- Re: Circumventing the GPL, Hyman Rosen, 2008/07/25