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Re: GPL question

From: Alexander Terekhov
Subject: Re: GPL question
Date: Thu, 18 Oct 2007 12:53:40 +0200

John Hasler wrote:
> Tim Smith writes:
> > Especially when the later keep overlooking a major area of copyright law:
> > first sale.  As more and more embedded systems use Linux, and more and
> > more OEMs sell pre-built Linux systems, first sale is going to become
> > very relevant.
> First sale does not impinge on GPLv2 in any way whatosever.

Note that the GPLv2 does not acknowledge First Sale when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works." It also ignores Section 117,
which gives "the owner of a copy of a computer program" the right to
"make or authorize the making of another copy OR ADAPTATION of that
computer program" if it is "an essential step in the utilization of
the computer program in conjunction with a machine".

As for GPLv3, Professor Hollaar (who worked on Internet, copyright, 
and patent issues as a U.S. Senate Judiciary Committee Fellow) has 
commented regarding GPLv3 wording (and apparently his comments were 
simply dismissed from consideration by RMS, Eben & Co.) on system:

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 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

Recently one guy from "freedom camp" told me that the GPLv3 statement

"This License acknowledges your rights of fair use or other
equivalent, as provided by copyright law."

fixes all that, should read

"This License acknowledges all limitations on exclusive rights as
provided by copyright law."

and that it overrides all other statements in the GPL contradicting it
(all other statements including all those erroneous proclamations
pointed out by Hollaar).

No wonder nobody can grok the GPL having undrunken state of mind...


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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