Post by David KastrupPost by Alexander Terekhov[...]
Post by David KastrupThe GPL _relaxes_ the prohibitions of copyright law, permitting you to
The GPL grants the rights of reproduction and also creation of
derivative works.
Under conditions.
The GPL contains no conditions precedent (at least under New York
law. :-) ).
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"We think that the payment of royalties and the inclusion of a notice
crediting James's authorship are to be considered covenants, not
conditions. The construction of the licensing agreement is governed by
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150,
153 (2d Cir. 1968). Generally speaking, New York respects a presumption
that terms of a contract are covenants rather than conditions ... 'The
law favors covenants, rather than conditions precedent.'), aff'd , 193
N.Y. 661 (1908)." Graham id.
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Here the word "conditions" is historical and refers generally to
"conditions precedent"... some condition that must be satisfied
*before* a grant of rights is effective. Failure to meet a "condition
precedent" stated in a contract gives rise to an infringement violation
under section 504 because you never got permission in the first place.
Conditions precedent are disfavored in the law.
---------
While a party that owns copyright rights is ordinarily entitled to pursue
infringement claims against any third party who violates them, the courts
have recognized that the rights and remedies available to copyright
holders change significantly when the owner elects to give others a
nonexclusive license to use such property. In that situation, the
owner/user relationship is fundamentally different. Absent a license, the
rights of the copyright holder are governed by statutory and common
law rules applicable to such rights. With a license, however, the terms
and covenants of the license establish the applicable rules. See
Effects Associates, Inc. v. Cohen, 908 F.2d 555, 559 (9th Cir. 1990)
(in granting a copyright license, the licensor gives up its right to sue
the licensee for infringement).
Recognizing that the existence of consensual licensing arrangements
significantly changes the applicable rules and the expectations of the
parties, federal courts have held that a party cannot normally pursue a
copyright infringement action based upon the licensees breach of
covenants in the license agreement. As a general rule, " if the
[licensees] improper conduct constitutes a breach of a covenant
undertaken by the licensee . . . and if such covenant constitutes an
enforceable contractual obligation, then the licensor will have the
cause of action for contract," not for copyright infringement. Graham
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey,
698 F.2d 991, 993 (9th Cir. 1983):
[A] case does not arise under the federal copyright laws . . . merely
because the subject matter of the action involves or affects a copyright.
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The GPL says (regarding distribution of copies in object code form, for
example):
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a) Accompany it with the complete corresponding machine-readable
source code, which must be distributed under the terms of Sections
1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three
years, to give any third party, for a charge no more than your
cost of physically performing source distribution, a complete
machine-readable copy of the corresponding source code, to be
distributed under the terms of Sections 1 and 2 above on a medium
customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer
to distribute corresponding source code. (This alternative is
allowed only for noncommercial distribution and only if you
received the program in object code or executable form with such
an offer, in accord with Subsection b above.)
---------
So how is that in sync with "... without the authority of the copyright
owner, to sell or otherwise dispose of the possession of that copy or
phonorecord" spelled out in 17 USC 109?
As for the reproduction right (1) and derivative works right (2) both
implying the distribution right (3) [see 17 USC 106], it's not an
implication, but a special rule in United States copyright law spelled
out in Section 109. (It is commonly called "first sale," but the actual
parameters of the rule are specified in the statute and not some lay
reading of "first," "sale," or even "first sale.")
The heart of the provision is its first sentence:
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.
But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.
But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.
Post by David KastrupIt is still an option for you to not accept the
GPL and default to the normal provisions of copyright in your country.
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 misstatements 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 ...
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.
See
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
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.)
regards,
alexander.