Hi, the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight? -- Falk
Falk Hueffner wrote:
Hi,
the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight?
I also thought that this is a bug. Boost's lawyer(s) got it right. No "redistribution" permission needed. It's all in the 17 USC 109. regards, alexander. -- http://terekhov.de/GPL'ed-Sources.txt
Alexander Terekhov <terekhov@web.de> writes:
Falk Hueffner wrote:
Hi,
the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight?
I also thought that this is a bug. Boost's lawyer(s) got it right.
No "redistribution" permission needed. It's all in the 17 USC 109.
I don't see that in the text. Can you point to the specific part? Anyway, even if it follows from some law text, why is redistribution of unmodified copies then allowed explicitely? Moreover, I really don't think it fits the description * Must be simple to read and understand. if one is expected to additionally read and understand part of the US copyright law. Why not just save a lot of misunderstandings and spell this out? -- Falk
On Friday 30 July 2004 1:59 pm, Falk Hueffner wrote:
Moreover, I really don't think it fits the description
* Must be simple to read and understand.
if one is expected to additionally read and understand part of the US copyright law.
Why not just save a lot of misunderstandings and spell this out?
Because it would create more misunderstandings. It does not help to rewrite the text of the license to answer questions that are not legally ambiguous. The Boost license text was crafted _by lawyers_ with the purpose of communicating the legal status of Boost code. It does that. We have page that discusses the terms of the license without the legalese. Doug
Falk Hueffner wrote:
Alexander Terekhov <terekhov@web.de> writes:
Falk Hueffner wrote:
Hi,
the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight?
I also thought that this is a bug. Boost's lawyer(s) got it right.
No "redistribution" permission needed. It's all in the 17 USC 109.
I don't see that in the text. Can you point to the specific part?
---- 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. ---- Derivative work is a "work". "Copies" are material objects. "Works" are the things fixed in a "copy". You can't prepare a derivative work without fixing it and creating a "copy". 17 USC 109 grants you the right to distribute lawfully made "copies" owned by you (including copies made by you with the copyright owner's authorization [Boost license] or under one or more exception(s) in the Copyright Act). In the Committee Report that accompanied the passage of the Copyright Act of 1976 (House Report 94-1976), there is this explaination: ---- To come within the scope of section 109(a), a copy or phonorecord must have been "lawfully made under this title," though not necessarily with the copyright owner's authorization. For example, any resale of an illegally "pirated" phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not. ----
Anyway, even if it follows from some law text, why is redistribution of unmodified copies then allowed explicitely?
It doesn't need to be allowed explicitly (in addition to the reproduction right grant). You can violate the distribution right only with illegal/unlawful/pirated copies (not made by you; otherwise, if you make and distribute unauthorized copies, it's infringement of both reproduction and distribution rights). That's how I understand it. IANALBIPOOTN. regards, alexander.
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> You can violate the distribution right only with Alexander> illegal/unlawful/pirated copies But the only way to obtain a legal copy is to accept the license: "5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License" Is it possible to accept it and not be bound by its terms ? Or? ~velco
Momchil Velikov wrote:
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> You can violate the distribution right only with Alexander> illegal/unlawful/pirated copies
But the only way to obtain a legal copy is to accept the license:
"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License"
Is it possible to accept it and not be bound by its terms ?
You don't "accept" anything when you buy a book. Stallman wrote the GPL long before Softman vs Adobe... if you want reciprocal share- alike "license" that works, use the CPL, the OSL, and other solid contractual stuff like that. Well, read also this: http://tinyurl.com/6zfbu (The Role of Intellectual Property in Open Source Software) My humbly "A+B" can be found here: http://groups.google.com/groups?selm=410842A8.5D889B13%40web.de Uhmm, here's "C" (WRT nonliteral copying): http://groups.google.com/groups?selm=40FEBA51.102A9589%40web.de http://groups.google.com/groups?selm=40DFD973.890F4CE7%40web.de Both Christian Nadan, A Proposal to Recognize Component Works: How a Teddy Bears on the Competing Ends of Copyright Law and Christopher Heer, The Case against Copyright Protection of Non-literal Elements of Computer Software are MUST READ. regards, alexander.
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> Momchil Velikov wrote: >> >> >>>>> "Alexander" == Alexander Terekhov <terekhov@web.de> writes: >> Alexander> You can violate the distribution right only with Alexander> illegal/unlawful/pirated copies >> >> But the only way to obtain a legal copy is to accept the license: >> >> "5. You are not required to accept this License, since you have not >> signed it. However, nothing else grants you permission to modify or >> distribute the Program or its derivative works. These actions are >> prohibited by law if you do not accept this License" >> >> Is it possible to accept it and not be bound by its terms ? Alexander> You don't "accept" anything when you buy a book. What you do or don't with other kinds of merchandise is irrelevant. My question is simple: how can you claim you poses a legal copy of a GPL'ed work and not be bound by the GPL ? What are the other means (if any) to obtain a legal copy of a GPL'ed work ? Because the rights you claim you have under 17 USC 109 are preconditioned on having a legal copy, no ? ~velco
Momchil Velikov wrote: [...]
What you do or don't with other kinds of merchandise is irrelevant.
In both US and EU computer programs are protected as literary works (modulo the AFC test).
My question is simple: how can you claim you poses a legal copy of a GPL'ed work and not be bound by the GPL ?
Wrong question. Right question: what makes a binary-only copy of the GPL'ed work illegal. Answer it not using the word "acceptance" (or something like that).
What are the other means (if any) to obtain a legal copy of a GPL'ed work ?
All the same ways as with copyrighted text. The GPL is not a contract and there's just nothing to accept. You'll have to show some copyright infringement (USC 106 though 121) without using words "distribution" and "promise". Assume that I simply download GPL'ed copies from some FSF's site not clicking on any "I accept" buttons.
Because the rights you claim you have under 17 USC 109 are preconditioned on having a legal copy, no ?
Absolutely yes. regards, alexander.
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> All the same ways as with copyrighted text. The GPL is not a Alexander> contract and there's just nothing to accept. You'll have to Alexander> show some copyright infringement (USC 106 though 121) without Alexander> using words "distribution" and "promise". Assume that I simply Alexander> download GPL'ed copies from some FSF's site not clicking on Alexander> any "I accept" buttons. When you buy a book you don't sign a contract too. Nor a license. That does not mean that you have rights to copy the original work or derivatives. How come with downloaded software it means ? I'd think making copies of the work constitutes an equivalent to clicking an accept button. Besides, it is common to obtain the work and be aware of the license afterwards. That again I can't imagine that means you're not bound by the terms of the license. ~velco
Momchil Velikov wrote:
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> All the same ways as with copyrighted text. The GPL is not a Alexander> contract and there's just nothing to accept. You'll have to Alexander> show some copyright infringement (USC 106 though 121) without Alexander> using words "distribution" and "promise". Assume that I simply Alexander> download GPL'ed copies from some FSF's site not clicking on Alexander> any "I accept" buttons.
When you buy a book you don't sign a contract too. Nor a license. That does not mean that you have rights to copy the original work or derivatives.
Nothing; fair use (fair use copies also fall under 17 USC 109, BTW) aside for a moment.
How come with downloaded software it means ?
What do you mean? If I need two copies, I can download it two times (implied license "to save bandwidth" aside for a moment).
I'd think making copies of the work constitutes an equivalent to clicking an accept button.
http://www.utexas.edu/law/journals/tiplj/volumes/vol10iss3/nadan.html (Open Source Licensing: Virus or Virtue?) "Similarly, in Specht v. Netscape Communications Corp., the court held that no agreement is formed if the customer downloads the software without clicking a clickwrap and without first being informed that the downloading constitutes acceptance of the license agreement.[60] The customer could download this software from Netscapes website without being first forced to click the clickwrap. Further, the notice about the existence of the clickwrap was not even visible on the screen when downloading the softwarethe user would only discover the clickwrap by browsing elsewhere on the website.[61] The only hint that a contract is being formed is one small box of text referring to the license agreement, text that appears below the screen used for downloading and that a user need not even see before obtaining the product.[62] Thus, the downloader was not bound by inconspicuous contractual provisions of which he was unaware.[63]" ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Now, http://www.groklaw.net/article.php?story=20031214210634851 (The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling) Everybody and his dog (apart the Munich district court) is aware that the GPL is *NOT* a contract. http://www.gnu.org/philosophy/enforcing-gpl.html <quote> But most proprietary software companies want more power than copyright alone gives them. These companies say their software is ``licensed'' to consumers, but the license contains obligations that copyright law knows nothing about. [...] Copyright law doesn't prohibit decompilation, the prohibition is just a contract term you agree to as a condition of getting the software when you buy the product under shrink wrap in a store, or accept a ``clickwrap license'' on line. Copyright is just leverage for taking even more away from users. The GPL, on the other hand, subtracts from copyright rather than adding to it. The license doesn't have to be complicated, because we try to control users as little as possible. [...] The only thing we absolutely require is that anyone distributing </quote> Well, 17 USC 109, Herr Professor. <quote continued> Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers. But it is sometimes said that the GPL can't be enforced because users haven't ``accepted'' it. This claim is based on a misunderstanding. </quote> Got it?
Besides, it is common to obtain the work and be aware of the license afterwards. That again I can't imagine that means you're not bound by the terms of the license.
Talk to your lawyer, Momchil. The GPL is a joke. regards, alexander. P.S. http://www.rosenlaw.com/html/GL19.pdf (Lawrence Rosen, Manifestation of Assent)
Alexander Terekhov wrote: [...]
When you buy a book you don't sign a contract too. Nor a license. That does not mean that you have rights to copy the original work or derivatives.
Nothing; fair use (fair use copies also fall under 17 USC 109, BTW) aside for a moment.
I meant that you indeed can't make copies and derivatives (apart from fair use). But you own your copy and you can do things similar to http://www.law.cornell.edu/copyright/cases/125_F3d_580.htm (LEE v. A.R.T. COMPANY, 125 F.3d 580 (7th Cir. 1997)) I just quote one passage that I really like. --- We asked at oral argument what would happen if a purchaser jotted a note on one of the note cards, or used it as a coaster for a drink, or cut it in half, or if a collector applied his seal (as is common in Japan); Lee's counsel replied that such changes prepare derivative works, but that as a practical matter artists would not file suit. A definition of derivative work that makes criminals out of art collectors and tourists is jarring despite Lee's gracious offer not to commence civil litigation. --- ;-) regards, alexander.
Alexander, The discussion is drifting away somewhat ... So, the claim is that there's no need of explicit permission (in the Boost License) to make copies and copies of derived work (=distribute), because this right is granted by the USC. As a side note proprietary licenses do not allow distribution by explicitly forbidding it and are without doubt enforceable by virtue of being contracts. As another side note ditribution terms of GPL is not enforceable (in some cases) because one can legally obtain copies of GPL'ed software without being bound by the GPL and thus USC provisions apply. Are these yours and Boost lawers claims or have I misunderstood something ? And as another side note, when one is capable of downloading some software, does that mean that the software is in the public domain, just because one has no idea whether it has or has no rights to download it ? ~velco
Momchil Velikov wrote:
Alexander,
The discussion is drifting away somewhat ...
So, the claim is that there's no need of explicit permission (in the Boost License) to make copies and copies of derived work (=distribute), because this right is granted by the USC.
Permission to MAKE copies (reproduction) is needed. Distribution (redistribution) != reproduction. Reproduction is the most "fundamental" thing. http://www.research.ibm.com/quantuminfo/teleportation ;-) IIUC, distribution right comes into play only in the context of illegal copies. It's needed to put piracy dialers (they don't produce pirated copies and only buy and sell -- distribute) into jail.
As a side note proprietary licenses do not allow distribution by explicitly forbidding it and are without doubt enforceable by virtue of being contracts.
Quoting Rosen: "in most jurisdictions the parties can agree to almost any damn fool thing they want, except those things which are against public policy." And the Libaries say that http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf <quote> Copyright Act should state unambiguously that non-negotiated license terms are pre-empted to the extent that they conflict with the Act. Consistent with the model from the Boucher- Campbell Bill cited above (in Section II of these comments) and supported by the Libraries and a broad coalition of interested parties, H.R. 3048, section 301(a) of the title 17, United States Code should be amended by adding the following at the end thereof: When a work is distributed to the public subject to non- negotiable license terms, such terms shall not be enforceable under the common law or statutes of any state to the extent that they: (1) limit the reproduction, adaptation, distribution, performance, or display, by means of transmission or otherwise, of material that is uncopyrightable under section 102(b) or otherwise; or (2) abrogate or restrict the limitations on exclusive rights specified in sections 107 through 114 and sections 117, 118 and 121 of this title. </quote> I agree. ;-)
As another side note ditribution terms of GPL is not enforceable (in some cases) because one can legally obtain copies of GPL'ed software without being bound by the GPL and thus USC provisions apply.
Exactly. Clearly, Stallman and Moglen erroneously believe(d) in "exclusive redistribution right" for software. But it doesn't exist. http://www.gnu.org/philosophy/enforcing-gpl.html "The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ accepts none. The GPL only obliges you if you distribute ^^^^^^^^^^^^^ software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ can ever redistribute without a license," ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Ha ha. And Ha. "we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. " Yeah, dream on, Prof.
Are these yours and Boost lawers claims or have I misunderstood something ?
Mine and only mine.
And as another side note, when one is capable of downloading some software, does that mean that the software is in the public domain,
No.
just because one has no idea whether it has or has no rights to download it ?
For example, http://www.terekhov.de/DESIGN-futex-CV.cpp is All Rights Reserved. I merely "display" it. Only fair use is permitted (by law). regards, alexander.
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> Momchil Velikov wrote: >> >> Alexander, >> >> The discussion is drifting away somewhat ... >> >> So, the claim is that there's no need of explicit permission (in the >> Boost License) to make copies and copies of derived work >> (=distribute), because this right is granted by the USC. Alexander> Permission to MAKE copies (reproduction) is needed. Distribution Alexander> (redistribution) != reproduction. Reproduction is the most Alexander> "fundamental" thing. Ok, let it be making copies. So I walk into a store, buy I book and I'm entitled to making copies and derived works and distribute them? In the same way, I'm entitled to do the same with the Boost libraries? In the same way, I'm entitled to do the same with the software at ftp://ftp.gnu.org? In the same way, I'm entitled to do the same with http://download.microsoft.com/download/8/1/e/81ed90eb-dd87-4a23-aedc-298a960... ? (For the record, I just downloaded the three things without accepting any license or agreeing to a contract or whatever). >> As a side note proprietary licenses do not allow distribution by >> explicitly forbidding it and are without doubt enforceable by virtue >> of being contracts. Alexander> When a work is distributed to the public subject to non- Alexander> negotiable license terms, such terms shall not be enforceable Alexander> under the common law or statutes of any state to the extent Alexander> that they: Alexander> (1) limit the reproduction, adaptation, distribution, Alexander> performance, or display, by means of transmission or otherwise, Alexander> of material that is uncopyrightable under section 102(b) or Alexander> otherwise; or Alexander> (2) abrogate or restrict the limitations on exclusive rights Alexander> specified in sections 107 through 114 and sections 117, 118 Alexander> and 121 of this title. Not sure what do you mean by this ? >> As another side note ditribution terms of GPL is not enforceable (in >> some cases) because one can legally obtain copies of GPL'ed software >> without being bound by the GPL and thus USC provisions apply. Alexander> Exactly. Clearly, Stallman and Moglen erroneously believe(d) in Alexander> "exclusive redistribution right" for software. But it doesn't Alexander> exist. Ok, I understend your opinion. Whether this is true or not will be further investigated. >> And as another side note, when one is capable of downloading some >> software, does that mean that the software is in the public domain, Alexander> No. >> just because one has no idea whether it has or has no rights to >> download it ? Alexander> For example, Alexander> http://www.terekhov.de/DESIGN-futex-CV.cpp Alexander> is All Rights Reserved. I merely "display" it. Only fair use is Alexander> permitted (by law). Is this merely a ``display'' of the software http://unc.dl.sourceforge.net/sourceforge/boost/boost_1_31_0.tar.bz2 ? Is this merely a ``display'' of the software ftp://ftp.gnu.org/pub/gnu/gcc/gcc-3.4.1/gcc-3.4.1.tar.bz2 ? What should one do, if he wants more than the fair use rights ? (I presume fair use does not allow manufacturing a thousand CDs with Boost, putting them in a pretty box with an EULA printed on the side) ~velco
Momchil Velikov wrote: [...]
Ok, let it be making copies. So I walk into a store, buy I book and I'm entitled to making copies and derived works and distribute them?
No.
In the same way, I'm entitled to do the same with the Boost libraries?
You're entitled (see the license).
In the same way, I'm entitled to do the same with the software at ftp://ftp.gnu.org?
You're entitled (see the license).
In the same way, I'm entitled to do the same with http://download.microsoft.com/download/8/1/e/81ed90eb-dd87-4a23-aedc-298a960... ?
Ask Microsoft.
(For the record, I just downloaded the three things without accepting any license or agreeing to a contract or whatever).
You've transmitted "the three things" to your computer without accepting any license or agreeing to a contract or whatever. Right. [...]
Alexander> (2) abrogate or restrict the limitations on exclusive rights Alexander> specified in sections 107 through 114 and sections 117, 118 Alexander> and 121 of this title.
Not sure what do you mean by this ?
It means the end of non-negotiable share-alike lisenses (contracts). Welcome to the BSD (or BSL) only world. ;-) [...]
Is this merely a ``display'' of the software http://unc.dl.sourceforge.net/sourceforge/boost/boost_1_31_0.tar.bz2 ?
AFAIK, no.
Is this merely a ``display'' of the software ftp://ftp.gnu.org/pub/gnu/gcc/gcc-3.4.1/gcc-3.4.1.tar.bz2 ?
AFAIK, no.
What should one do, if he wants more than the fair use rights ? (I presume fair use does not allow manufacturing a thousand CDs with Boost, putting them in a pretty box with an EULA printed on the side)
You'll need a grant of rights (implied stuff like the patent grants in the boost case is just fine for you as a licensee). regards, alexander.
"Alexander" == Alexander Terekhov <terekhov@web.de> writes:
Alexander> Momchil Velikov wrote: Alexander> [...] >> Ok, let it be making copies. So I walk into a store, buy I book and >> I'm entitled to making copies and derived works and distribute them? Alexander> No. Just as I suspected :) >> In the same way, I'm entitled to do the same with the Boost libraries? Alexander> You're entitled (see the license). Why should I look at the license? Is it the thing that grants me rights ? >> In the same way, I'm entitled to do the same with the software at >> ftp://ftp.gnu.org? Alexander> You're entitled (see the license). Why should I look at the license? Is it the thing that grants me rights? And if it grants me rights conditionally, can I ignore the conditions? >> In the same way, I'm entitled to do the same with >> http://download.microsoft.com/download/8/1/e/81ed90eb-dd87-4a23-aedc-298a960... ? Alexander> Ask Microsoft. Why don't you answered "Ask FSF" above? Alexander> [...] Alexander> (2) abrogate or restrict the limitations on exclusive rights Alexander> specified in sections 107 through 114 and sections 117, 118 Alexander> and 121 of this title. >> >> Not sure what do you mean by this ? Alexander> It means the end of non-negotiable share-alike lisenses Alexander> (contracts). Alexander> Welcome to the BSD (or BSL) only world. ;-) As in "no GPL and no MS EULA"-world ? Alexander> [...] >> Is this merely a ``display'' of the software >> http://unc.dl.sourceforge.net/sourceforge/boost/boost_1_31_0.tar.bz2 ? Alexander> AFAIK, no. >> >> Is this merely a ``display'' of the software >> ftp://ftp.gnu.org/pub/gnu/gcc/gcc-3.4.1/gcc-3.4.1.tar.bz2 ? Alexander> AFAIK, no. I see no difference to the way you ``display'' your file. Mind you, on its way to my monitor it may have undergone various transformations, compression/decompression, encoding/decoding, etc. ~velco
On Jul 31, 2004, at 7:12 PM, Momchil Velikov wrote:
Why should I look at the license? Is it the thing that grants me rights? And if it grants me rights conditionally, can I ignore the conditions?
This discussion has continued far beyond its relevance to Boost. If you have a specific question regarding the Boost license that is not answered by the existing web page for the license or the license text itself, please initiate a new thread with that question. Otherwise, take this discussion offline. Doug, Boost Moderator
"Doug" == Doug Gregor <dgregor@cs.indiana.edu> writes:
Doug> On Jul 31, 2004, at 7:12 PM, Momchil Velikov wrote: >> Why should I look at the license? Is it the thing that grants me >> rights? And if it grants me rights conditionally, can I ignore the >> conditions? Doug> This discussion has continued far beyond its relevance to Boost. I don't think so. The discussion is still about the original question, does Boost License permit distribution of derived works and where that follows from? Doug> you have a specific question regarding the Boost license that is not Doug> answered by the existing web page for the license or the license text Doug> itself The answer, given on the web page is clear. Justification is not. ~velco
Alexander Terekhov wrote: [many things] There's one thing that's been bugging me. Wasn't your logic predicated on "sale" as it relies on the doctrine of first sale? But downloading something at zero cost is not a sale, right?
Peter Dimov wrote:
Alexander Terekhov wrote:
[many things]
There's one thing that's been bugging me. Wasn't your logic predicated on "sale" as it relies on the doctrine of first sale? But downloading something at zero cost is not a sale, right?
Wrong. Gifts/gratis/free (sometimes they are called "promotional" ;-) ) copies also fall under "first sale". http://groups.google.com/groups?selm=cauv72%249nu%241%40vegh.ks.cc.utah.edu http://groups.google.com/groups?selm=cauvfk%249sc%241%40vegh.ks.cc.utah.edu http://groups.google.com/groups?selm=BCF9B282.1CB5A%25eschaal%40max.hi-ho.ne... Well, let's continue on misc.legal.computing. regards, alexander. P.S. Momchil, you're totally confused. http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF http://www.cacd.uscourts.gov/cacd/RecentPubOp.nsf/0/1c0109b1a49387b288256b48... P.P.S < Forward Inline > -------- Original Message -------- Newsgroups: misc.legal.computing Subject: Re: It's not a GPL loophole: object and source are equivalent Message-ID: <410DF41A.2099EA18@web.de> References: ...<cejhvf$9ed$1@vegh.ks.cc.utah.edu> Lee Hollaar wrote:
In article <barmar-6E37FC.18034631072004@comcast.dca.giganews.com> Barry Margolin <barmar@alum.mit.edu> writes: [Presumably quoting from the GPL ...]
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License.
Just because the GPL states something doesn't make it so. In particular, there are a couple of mistatements of the law there.
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 instance: Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner ...
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.
However, you can't dispose of the possession of a computer program by rental or lending. See 17 USC 109(b).
So, a more accurate statement would be: However, nothing else grants you permission to modify AND distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License.
(The stuff about signing the license is a little wierd, too. It's not really clear the point that is being made. Perhaps it's trying to say that since you haven't signed the license, you haven't accepted its terms yet, but will have to if you are going to perform an act that requires a permission giving in the license.)
It's a fact that the owner of a copy with fixed "adaption of the GPL'ed work" can duplicate it, throw away the "original" (don't own it any more), and use all that zillion of duplicates as much as s/he wants for whatever purpose (apart from distribution) s/he wants with nobody claiming infringement in the GPL camp. In my view, that clearly puts the "adaptations" of the GPL'ed works outside the scope of 17 USC 117 limitation on distribution and 17 USC 109 fully applies. Silly misunderstanding/unawareness of law by the FSF just can't be disputed: "The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ no one can ever redistribute without a license," ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ That's nonsense. "we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. " That's utter crapola too. regards, alexander.
Alexander Terekhov wrote:
Peter Dimov wrote:
Alexander Terekhov wrote:
[many things]
There's one thing that's been bugging me. Wasn't your logic predicated on "sale" as it relies on the doctrine of first sale? But downloading something at zero cost is not a sale, right?
Wrong. Gifts/gratis/free (sometimes they are called "promotional" ;-) ) copies also fall under "first sale". ....
I forgot to include (by reference) "exhibit 666(s)": http://www.gnu.org/philosophy/selling.html regards, alexander. P.S. In the P.P.S. section of my previous message I was quoting "exhibit 666(e)": http://www.gnu.org/philosophy/enforcing-gpl.html P.P.S. More exhibits can be found in these threads: http://www.spinics.net/lists/xf/msg02034.html http://lists.debian.org/debian-legal/2004/05/msg00390.html
On Fri, Jul 30, 2004 at 07:31:10PM +0200, Alexander Terekhov wrote:
Falk Hueffner wrote:
the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight?
I also thought that this is a bug. Boost's lawyer(s) got it right.
No "redistribution" permission needed. It's all in the 17 USC 109. ^^^^^^^^^^
After I figured out that USC stands for "United States Code" I looked it up at <URL:http://uscode.house.gov/usc.htm>, only to find that US lawmakers don't produce more comprehensible language than their German counterparts. I didn't see where this particular law covers Falk's question, but if the lawyers who drafted the Boost license say so, I won't argue... However, that brought another question to my mind: USC can only apply if at least one party of the license agreement is living or based in the US. (That's my layman's understanding, at least - IANAL) But is Boost a legal entity that can be party to a contract? Or do I in fact accept license agreements with the individual Boost contributors? If the latter holds and I use a Boost library contributed by someone living in Germany, then only German law applies, doesn't it? And if the library I use was contributed by someone living in Russia does then only Russian and / or German laws apply? Does anyone know whether this does or does not constitute a real problem? (A far fetched example: As I read the Boost license it denies _any_ liability, even in cases of gross negligence. I could imagine that a German court voids the disclaimer on the grounds that it is too broad. But then, I don't have any in depth knowledge about German liability laws.) Christoph -- http://www.informatik.tu-darmstadt.de/TI/Mitarbeiter/cludwig.html LiDIA: http://www.informatik.tu-darmstadt.de/TI/LiDIA/Welcome.html
Christoph Ludwig wrote: [...]
However, that brought another question to my mind: USC can only apply if at least one party of the license agreement is living or based
"First sale" is pretty universal copyright principle. <quote source=http://tinyurl.com/3c2n2> (1) First Sale Doctrine The first sale doctrine was first analyzed by the United States Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). [...] One significant effect of § 109(a) is to limit the exclusive right to distribute copies to their first voluntary disposition, and thus negate copyright owner control over further or downstream transfer to a third party. Quality King Distrib. v. LAnza Research Intl, Inc., 523 U.S. 135, 142-44 (1998). [...] Adobe argues that the first sale doctrine does not apply because Adobe does not sell or authorize any sale of its software. Adobe characterizes each transaction throughout the entire stream of commerce as a license.8 Adobe asserts that its license defines the relationship between Adobe and any third-party such that a breach of the license constitutes copyright infringement. This assertion is not accurate because copyright law in fact provides certain rights to owners of a particular copy. This grant of rights is independent from any purported grant of rights from Adobe. The Adobe license compels third-parties to relinquish rights that the third-parties enjoy under copyright law. [...] (2) Sale v. License (a) Historical Background Historically, the purpose of licensing computer program copy use was to employ contract terms to augment trade secret protection in order to protect against unauthorized copying at a time when, first, the existence of a copyright in computer programs was doubtful, and, later, when the extent to which copyright provided protection was uncertain. (See Rice Decl. ¶ 6.) Computer program copy use licensing continued after federal courts interpreted the Copyright Act to provide substantial protection for computer programs as literary works. (Id. at ¶ 7.) In Step-Saver Data Systems, Inc. v. Wise Technology, the Third Circuit examined the historical development of the use of licensing in the software industry and concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license largely anachronistic. 939 F.2d 91, 96 n.7 (3d Cir. 1991).10 (b) Adobe Sells its Software A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step- Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). [...] Other courts have reached the same conclusion: software is sold and not licensed. </quote> http://groups.google.com/groups?selm=40D8767D.5A830BA%40web.de (Subject: Re: Purchasing The Standard) http://groups.google.com/groups?selm=40D872CB.BF665A1E%40web.de (Subject: Re: Purchasing The Standard) Read also this: [MUST READ] http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf As for Germany, http://www.theregister.co.uk/2000/09/04/german_court_ruling_triggers (German court ruling triggers 30% price cuts on Windows) ;-)
in the US. (That's my layman's understanding, at least - IANAL) But is Boost a legal entity that can be party to a contract? Or do I in fact accept license agreements with the individual Boost contributors?
Boost license is not a contract. It's a bunch of unilateral permissions. Well, but given the utterly silly ruling of the Munich district court against the Sitecom in the GPL case recently... you never know. Hopefully, it will be corrected on appeal (if the Sitecom will choose to appeal it). regards, alexander.
FYI (given ongoing "S.S." stuff and so forth topicalities ;-) ) Alexander Terekhov wrote: [...]
Boost license is not a contract. It's a bunch of unilateral permissions. Well, but given the utterly silly ruling of the Munich district court against the Sitecom in the GPL case recently... you never know. Hopefully, it will be corrected on appeal (if the Sitecom will choose to appeal it).
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf (The first-ever ruling on the legal validity of the GPL - A Critique of the Case By Professor Dr Thomas Hoeren, Visiting Fellow at the Oxford Internet Institute) <quote> 1. The decision of the District Court of Munich is celebrated as the first-ever judgement on the validity of the GPL. That is surprising. The decision is the judgement of only a single district court in Germany. And it is only a summary and preliminary decision based on injunctive remedies. Furthermore, the judgement refers to only one special case within the Open Source scene. There was only one main developer involved in this project, so there was no need to decide, for example, on the complicated questions of rights ownership involved in Linux. 2. Given the high importance that the Open Source community attributed to the judgement, the Courts legal arguments are extremely poor. I do not want to deal with the many spelling and grammatical mistakes in the original version of the decision; such things happen in the heat of the moment. But it is even more astonishing that most of the relevant legal literature has not been considered. The Court essentially refers only to an essay from Metzger/Jäger written in 1999, apart from two essays from Omsels and Plaß. None of the critical voices about the effectiveness of the GPL have been heard. 3. Apart from these formalities, the argumentation of the judges raises many questions and prompts many criticisms. a. The homepage of the plaintiff included a link to the GPL version 2 (June 1991), an American document of the FSF. However, the US version of the GPL was not considered by the Court. Instead the Court used an unofficial German translation without devoting even a single sentence to justifying this approach. The judges also did not mention the history of the GPL, nor did they ask how the GPL might be interpreted under US rules on the interpretation of contractual documents. They simply applied German methodology and concepts to a document whose legal roots are deeply intermingled with US law and the US Open Source mentality. b. The court interpreted the GPL in the light of the German model of condition subsequent based upon Sect. 158 of the German Civil Act (BGB). The court argued that infringements of the GPL would lead to an automatic loss of rights, based upon a condition subsequent. The user of open source products gets the license to use the product only on the condition that, and as long as, he sticks to the rules of the GPL. The Court held that this extremely tight link between the use right and the GPL would not prevent the software product from being marketed, as a third party would be able at any time to re-acquire the rights from the software developer. However, sects. 2 and 4 of the GPL do not refer to the German concept of conditions. Sect. 4 refers to particular rights provided that. Sect. 2 uses the term conditions, but in a very broad and general sense, such as a contractual term which has to be met. It might well be that a violation of the GPL leads to contractual remedies for non-performance, but not to an automatic loss of use rights. c. To operate with a condition subsequent is beating the devil with the devil. If I were a producer of proprietary software products, I would be very happy with the judgement of the district court because nobody can prevent the producers of proprietary software from likewise using a condition subsequent. They can now restrict the transfer of sold software to third persons or the use of a programme on different computers by combing these (invalid) contractual restrictions with a condition subsequent related to the license. If you pass software to anybody else or use it in another computer, you (and the third person) automatically lose your right to use the software. Everything courts had said on the (in-) validity of contractual use restrictions in the software business is now going to be undermined by the model of the condition subsequent. d. Why does the GPL call itself a license? The term license is not used in the German Copyright Act and is not known in Continental European copyright law. That is good: the term license is nebulous and has been used in business as a smokescreen to mask the invalidity of license restrictions. In recent years the license model has been efficiently refuted by European courts and traced back to traditional concepts such as the purchase of rights or a legal lease. The district court should have dealt with this opinio communis. But what happened in Munich? e. The ignorance of the Munich court as to the opinio communis can also be demonstrated in connection with the problem of exhaustion. If the GPL is regarded to be binding even in cases of the transfer of software to a third person, the concept of exhaustion might be violated. 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. The Munich court obviously did not know of these developments; instead it simply stated that the German copyright legislator had once expressed its support for Open Source. However, this support has been given only in other legislative debates regarding mandatory rights of creators to adequate remuneration. But even if the legislator generally likes Open Source, it does not at all mean that the legislator supports and considers every rule of the GPL as legally effective. f. En passant, the Court raised some more radical questions without giving good arguments. For instance, the Court claimed that a non- exclusive license gives a right in rem; this contradicts the interpretation of the Federal Supreme Court, which held that non- exclusive use rights are not property rights but contractual rights (BGH, GRUR 1959, 201, 202 Heiligenhof). The court has not really discussed rules relating to the conflict of laws. Of course, copyright law is governed by the principle of territoriality. But what about the relevant rules for contractual aspects, as with the interpretation of the GPL (see above) or the applicability of regulations concerning unfair contract terms? g. Finally, there is the important question of the consequences of the assumed invalidity of the GPL. The Munich court argued that the question of the enforceability of the GPL was in no way relevant. According to the Bavarian judges, if the GPL is legally ineffective, the user does not have a license and is thus violating copyright law. On the face of it, that sounds plausible, but it is not. 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. It would violate equity and good faith if he were allowed to sue others merely on the grounds that his license terms were invalid. </quote> regards, alexander. -- http://groups.google.com/groups?selm=41055C8A.3D4940B7%40web.de
Christoph Ludwig <cludwig <at> cdc.informatik.tu-darmstadt.de> writes:
On Fri, Jul 30, 2004 at 07:31:10PM +0200, Alexander Terekhov wrote:
Falk Hueffner wrote:
the boost license (http://www.boost.org/LICENSE_1_0.txt) does not allow redistributing modified versions. Is that intentional or an oversight?
I also thought that this is a bug. Boost's lawyer(s) got it right.
No "redistribution" permission needed. It's all in the 17 USC 109. ^^^^^^^^^^
After I figured out that USC stands for "United States Code" I looked it up at <URL:http://uscode.house.gov/usc.htm>, only to find that US lawmakers don't produce more comprehensible language than their German counterparts. I didn't see where this particular law covers Falk's question, but if the lawyers who drafted the Boost license say so, I won't argue...
However, that brought another question to my mind: USC can only apply if at least one party of the license agreement is living or based in the US. (That's my layman's understanding, at least - IANAL) But is Boost a legal entity that can be party to a contract? Or do I in fact accept license agreements with the individual Boost contributors?
If the latter holds and I use a Boost library contributed by someone living in Germany, then only German law applies, doesn't it? And if the library I use was contributed by someone living in Russia does then only Russian and / or German laws apply?
Does anyone know whether this does or does not constitute a real problem? (A far fetched example: As I read the Boost license it denies _any_ liability, even in cases of gross negligence. I could imagine that a German court voids the disclaimer on the grounds that it is too broad. But then, I don't have any in depth knowledge about German liability laws.)
Here's what the Boost lawyer said. Hope it helps: From: "Smith, Devin" <DSMITH@nixonpeabody.com> Subject: FW: Re: Boost license Date: Fri, 17 Sep 2004 18:08:02 -0400 Christoph asks a good question about the applicability of national laws on Boost libraries and the Boost license. First, the individual contributor or contributors are the licensors of their libraries. Boost is not a party to the Boost licenses. Second, if a contributor is a national of any country that has signed an international treaty called the "Berne Convention" (most of the countries of the world have - see http://www.wipo.int/treaties/en/documents/pdf/e-berne.pdf for a list), then that contributor's libraries are automatically protected by the copyright laws of all of the nations that have signed the treaty. This means, in practice, that a contributor has copyright protection for its libraries in most countries of the world. And the copyright protection laws are very similar in each of these nations. The Boost license, then, grants the user the right to use the library without violating the copyright laws of the nation in which the user uses the library. And the laws of the nation in which the user is located will be applied in enforcing and interpreting the Boost license. (The Boost license could have contained a so-called "governing law clause" requiring that it be interpreted according to the laws of the Commonwealth of Massachusetts and the United States, but one goal of drafting the license was to keep it short, and foreign courts may not feel bound by or be able to follow that clause anyway.) IANAGermanL, so I can't say for sure what the effect of German law would be in interpreting the Boost license. It may well be the case that the disclaimer of warranty is not effective for public policy reasons. But I think that is very unlikely, and, in any case, there's really not much that can be done about it from a practical perspective. So it's not an issue with which contributors should be concerned.
On Fri, Sep 17, 2004 at 11:42:35PM +0000, Dave Abrahams wrote:
Christoph Ludwig <cludwig <at> cdc.informatik.tu-darmstadt.de> writes: [ question on the applicability of national law on the Boost license ]
Here's what the Boost lawyer said. Hope it helps: [...]
Thanks for the clarification! Regards Christoph -- http://www.informatik.tu-darmstadt.de/TI/Mitarbeiter/cludwig.html LiDIA: http://www.informatik.tu-darmstadt.de/TI/LiDIA/Welcome.html
participants (7)
-
Alexander Terekhov -
Christoph Ludwig -
Dave Abrahams -
Doug Gregor -
Falk Hueffner -
Momchil Velikov -
Peter Dimov