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Re: using GPL api to be used in a properietary software

From: Alexander Terekhov
Subject: Re: using GPL api to be used in a properietary software
Date: Tue, 15 Mar 2005 12:15:43 +0100

Martin Dickopp wrote:
> trying to circumvent the library license, ...

Exercising the (distribution) right that owners of "copies" (in the
sense of 17 USC 101) enjoy under copyright law (which the GPL purports 
to follow but actually blatantly misstates) is not a "circumvention". 
There are a whole bunch of misstatements of the copyright law in the 
GPL. The first is that "nothing else grants you permission to modify... 
the Program."

17 USC 117(a) does grant that permission in a special, but important 

There is nothing in the GPL that says that a person is not the "owner 
of a copy" of the program. So, as long as the adaptation (modification) 
is "an essential step in the utilization of the computer program in
conjunction with a machine" it is permitted without the GPL.

The second is that "nothing else grants you permission to ... 
distribute the program."

17 USC 109(a) states that:

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.

According to
(Judge, Court of Appeal of Dusseldorf (Copyright Senate), etc.)

"contractual limitation of this principle is held to be invalid" in 

"The European Software Directive has provided that the exhaustion 
 of the copy of a program is applied Community-wide by a first sale 
 of that copy in the Community with the consent of the right-holder; 
 once an author has sold a copy of a work, he or she loses the 
 exclusive distribution right with respect to that work. A 
 contractual limitation of this principle is held to be invalid, 
 at least in Germany and Austria.


 If somebody offers software on the Internet for downloading and 
 links the download with invalid general terms, he can hardly sue 
 for copyright infringement. Instead, the validity of the standard 
 terms is a matter for the software distributor: if he wants to use 
 invalid contractual terms, he bears the risk of their use."

As for the US, < Forward Inline >

-------- Original Message --------
Subject: Re: Stallman rants about FreeBIOS
Message-ID: <>
References: ... <>

Bernd Paysan wrote:
> But if you need a secret key to make (working) modifications to the program,
> you have to include it, or at least have an instance that does sign
> whatever modified binary (or hash) you send them.

According to the FSF, the GPL is not a contract.

Under copyright law one just can't restrict distribution of copies 
(material objects) lawfully made. Electronic distribution implies 
reproduction, but that right is also granted unilaterally to 
everybody-and-his-dog by the GPL licensors. So all "copies" (17 USC 
101) incorporating publicly available GPL'd works (and their 
derivative works lawfully prepared and incorporated in "copies" 
thanks the GPL unilateral grant, *not* restricted adaptation right 
under 17 USC 117) are "lawfully made" and can be distributed as 
their owners see fit notwithstanding purported "must be free" 
restrictions stated in the GPL. That's because distribution of 
copies lawfully made doesn't require permission of the copyright 
proprietors. RedHat's lawyers simply erred in thinking that current 
codification of "first sale" doctrine (17 USC 109) needs amendments
(formally codifying "digital first sale"... and as a byproduct, also 
clearly stating legality of teleportation*** of books and etc. ;-) ) 
to break the GPL. The GPL is already totally broken.

< quotes from dmca/sec-104-report-vol-<2|3>.pdf >

Red Hat, Inc.:

  Let me just clarify that I don't think anyone today intends to 
  impact our licensing practices. I haven't seen anything in the 
  comments, nor have I heard anything today that makes me think 
  someone does have that intention. What we're concerned about 
  are unintended consequences of any amendments to Section 109. 
  The primary difference between digital and nondigital products 
  with respect to Section 109 is that the former are frequently 
  licensed. ... product is also available for free downloaded 
  from the Internet without the printed documentation, without 
  the box, and without the installation service. Many open source 
  and free software products also embody the concept of copyleft. 
  ... We are asking that amendments not be recommended that would 
  jeopardize the ability of open source and free software 
  licensor to require [blah blah]

Time Warner, Inc.:

  We note that the initial downloading of a copy, from an 
  authorized source to a purchaser's computer, can result in 
  lawful ownership of a copy stored in a tangible medium.

Library Associations:

  First, as conceded by Time Warner, digital transmissions can 
  result in the fixation of a tangible copy. By intentionally 
  engaging in digital transmissions with the awareness that a 
  tangible copy is made on the recipient's computer, copyright 
  owners are indeed transferring ownership of a copy of the work 
  to lawful recipients. Second, the position advanced by Time 
  Warner and the Copyright Industry Organizations is premised
  on a formalistic reading of a particular codification of the 
  first sale doctrine. When technological change renders the 
  literal meaning of a statutory provision ambiguous, that
  provision "must be construed in light of its basic purpose" 
  and "should not be so narrowly construed as to permit evasion 
  because of changing habits due to new inventions and 
  discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S. 
  151, 156-158 (1975). The basic purpose of the first sale 
  doctrine is to facilitate the continued flow of property 
  throughout society.

See also



"Other courts have reached the same conclusion: software is sold 
 and not licensed."
                               -- UNITED STATES DISTRICT COURT
                                  CENTRAL DISTRICT OF CALIFORNIA

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