Michigan Diagnostic Software Case Big Win for GPL

Pig Hogger writes "Many people claim that the validity of the GNU Public License has not been tested in court in the US. Well, it just had been, in Michigan, in a case that validated open-source car diagnostic software against the pretension of automakers who want to keep it secret. But don't take my word for it; read the story on GROKLAW." It's actually the Society of Automotive Engineers involved here; DrewTech (the developers in this case) nicely donated half of their settlement money to the SAE.

Comments

Good.

[daveschroeder]

But remember, the GPL itself is not specifically "tested", per se, because GPL software developers assert them rights granted to them via copyright on an individual basis. This makes it a sometimes long and arduous process to assert rights and/or prove infringement, but hopefully more precedent will help.

Since the provisions of the GPL have been upheld in a case in Germany as well, maybe PearPC will be able to more easily defend itself against CherryOS, which has blatantly taken GPL code, without release of source code or attribution, from PearPC and several other GPL projects:

eWeek has a general overview of the situation:

http://www.eweek.com/article2/0,1759,1775386,00.as p

Below is a comprehensive collection of evidence, which runs the gamut from CherryOS including original PearPC graphics, extremely unique strings and error messages, debug code from PearPC, the same unique MAC address as PearPC's default network adapter, shared specific functionality, including bugs, and so on:

http://www.ht-technology.com/cherryos-pearpc/cherr yos-pearpc.html

http://www.drunkenblog.com/drunkenblog-archives/00 0501.html
http://www.drunkenblog.com/drunkenblog-archives/00 0503.html
http://www.drunkenblog.com/drunkenblog-archives/00 0504.html
http://www.drunkenblog.com/drunkenblog-archives/00 0507.html

http://starport.dnsalias.net/index.php?show=articl e&id=348

http://forums.pearpc.net/viewtopic.php?p=16178#161 78
http://www.tliquest.net/ryan/cherryos/
http://dhost.info/kourge/en/projects/frauds/cherry os.php

Additionally, PearPC project authors are already asserting their rights under the GPL:

http://sourceforge.net/mailarchive/message.php?msg _id=11116974

And a general compilation of some of the evidence so far against CherryOS:

http://sourceforge.net/mailarchive/message.php?msg _id=11125509

DrewTech?

[AtariAmarok]

I wondered what he was doing these days. Is Mimi still his secretary?

Not a win, but a settlement

[suso]

Unless I'm missing something, this ended in a settlement, not an in court win backed up by a judge.

Re:Not a win, but a settlement

[m50d]

Yes. But the fact is that having never got as far as the court shows the strength of the GPL rather than its weakness. Think about it: you go to court because both sides think they can win. Everyone who has been about to challenge the GPL has realised they had lost before it got that far. Plenty of licenses have never been tested in court; a well worded license that any lawyer can tell you is valid doesn't need to.

Re:Not a win, but a settlement

[Tony Hoyle]

It also had nothing to do with the GPL - the license wasn't even an issue.

It's talking about whether deriving a program from a published standard constitutes a derived work of the standard or not.. copyright law, and the judge, said no.

This may even be bad for the GPL - the FSF are big on how everything is a derived work of everything else, and asserting that there are limits to that starts to chip away at their interpretation.

Re:Not a win, but a settlement

[Anonymous Coward]

It also had nothing to do with the GPL - the license wasn't even an issue.

It's talking about whether deriving a program from a published standard constitutes a derived work of the standard or not.. copyright law, and the judge, said no.

Please read TFA. The plaintiff disagrees that the GPL is irrelevant. In fact, it's very relevant--the fact that the code in question was released under the GPL, and therefore not SAE's exclusive property, was one of the plaintiff's major claims.

Most GPL issues ARE copyright law issues. That's really the only relief the author of GPL'ed code has--they can claim "use without a license" if someone uses their code in a non-GPL-approved way as a violation of their copyright. The lack of a license to use (GPL) implies a copright violation.

Granted, the GPL was not the exclusive issue in the case. But it's relevant.

Re:Not a win, but a settlement

[confusion]

Because it was settled and not ruled upon, there is no case law that other lawyers can reference from this outcome.

I don't think the GPL can declare any court victories until a judge actually rules in it's favor.

It is good to see that the SAE came to their senses, though.

Jerry
http://www.syslog.org/

Re:Not a win, but a settlement

[sundiver90]

It's a settlement alright. In the courts, there are two types of precedent. Binding precedent and persuasive precedent. Binding precedent are cases that must be followed by the courts. Persuasive precedent are cases that guide the court towards a ruling but may or may not be followed. A settlement is NEITHER. So, although it's nice to see the GPL be used in the legal system the caselaw precedent is still not there.

Re:Not a win, but a settlement

[man_of_mr_e]

Maybe. But it appears the case was settled, not because of the GPL, but because the SAE couldn't legally lay copyright to code that was already copyrighted, GPL or not. It doesn't seem like it supports the GPL at all.

In any event, the article submitter (and Groklaw) claim this is a test of the GPL in court. It's not. There was no ruling.

Re:Not a win, but a settlement

[The Bungi]

OK, but that's not what it says in the article submission. That's the point.

Re:Not a win, but a settlement

[nickname225]

I am a lawyer - and let me tell you - settlements are very persuasive to DEFENDANTS. True - you can't cite them to a judge and they don't make case law - but in the trenches where 95% of all legal disputes end up - settlement precedent is noticed by all the attorney's who play in the IP area.

Re:Not a win, but a settlement

[johnnyb]

"Please read TFA. The plaintiff disagrees that the GPL is irrelevant. In fact, it's very relevant--the fact that the code in question was released under the GPL, and therefore not SAE's exclusive property, was one of the plaintiff's major claims."

However, that would be true of ANY license -- there's nothing about the claims of the GPL that are unique to this case. If they had released it under a commercial license, it would have been the same argument, just on a more limitted scale. The terms of the GPL have still not been upheld.

That's not to say that the GPL doesn't have a leg to stand on. In fact, the GPL is unlike most other EULAs in that it _adds_ rights rather than takes them away. This is the primary reason the GPL has never seen the inside of a courtroom -- the case for it is so rock-solid that noone would even try.

Re:Not a win, but a settlement

[Douglas Simmons]

I disagree. The reality of our system is such that parties cave in to settlement offers not based on true innocence or guilt but on cost-benefit analyses of pursuing the case in court and possibly winning (but at a high price), or losing at an even higher price, versus cutting losses and settling out of court. Settlements are not effective precedent setters as future battles may involve parties with different political liability and cash flow.

Re:Not a win, but a settlement

[Anonymous Coward]

I don't think the GPL can declare any court victories until a judge actually rules in it's favor.

But the GPL's so obviously solid that nobody in their right minds will take it that far.

Re:Not a win, but a settlement

[bear_phillips]

Each settlement is a win. When the GPL is fully tested in court the number of prior settlements in favor of the GPL will be evidence that the GPL is an accepted industry contract. When a style of contract is widely accepted, judges are less likely to break them. So even though this is not binding case law, it still helps in the long run.

Re:Not a win, but a settlement

[man_of_mr_e]

Not necessarily. Simply being a widely accepted contract doesn't mean the contract is legal. I'm not saying the GPL isn't, just that your argument is faulty.

As an example, Microsoft's OEM contracts were widely accepted. That didn't mean they were legal.

Re:Not a win, but a settlement

[hrieke]

Not entirely true- laywers in GPL cases will research past cases and see that all the others have been settled, with the SCO case being the expection to the rule.
After taking a long hard look at the "One smoking crater" the SCO case has been so far, I think the wise laywer will ever so strongly recommend that they too settle and be done with it.
Better a slap on the wrist with a settlement than being HBS case study in self destruction.

Re:Not a win, but a settlement

[Anonymous Coward]

Industry standard is used all the time in contracts. Go read UCC article 2. These implied warranties may be disclaimed by using language such as "as is" by the buyer examining or refusing to examine the goods, or if the industry standard or past conduct between the parties limits the warranties. As far as Microsoft goes, I disagree that they were widely accepted. Being widely used is not the same as accepted. People keep saying the GPL is unclear on things. Settlements like this clear up what industry beleives the GPL does and does not do.

Re:Not a win, but a settlement

[man_of_mr_e]

You are forgetting that agreeing to a license is accepting it. As such, being widely "used" is the same as being widely "accepted".

Re:Not a win, but a settlement

[markhb]

Thank you. The only thing that was tested here was the SAE's lame ownership attempt, based on a usage policy buried in a disused lavatory on their website that essentially said "all your base....". The GPL is orthogonal to the dispute.

Re:Not a win, but a settlement

[ClosedSource]

"In fact, the GPL is unlike most other EULAs in that it _adds_ rights rather than takes them away."

Whether licenses add rights or take them away depends on your perspective.

Certainly licensing software under the GPL is more restrictive than releasing it in the public domain just as releasing binary code with a typical EULA is more restrictive than allowing people to copy it freely.

On the other hand, people don't have the automatic right to distribute source or binary, so you could say that both the GPL and an EULA add rights.

Re:Not a win, but a settlement

[starwed]

What is this GPC of which you speak? :P The GPL is a license, not a contract...

Re:Not a win, but a settlement

[johnnyb]

"Whether licenses add rights or take them away depends on your perspective."

Incorrect. It depends simply on copyright law. The GPL takes away NO FREEDOMS that are given by default by copyright law. Instead, it adds to them.

"On the other hand, people don't have the automatic right to distribute source or binary, so you could say that both the GPL and an EULA add rights."

Incorrect. EULA's don't generally give you a right to distribute source or binary. If you know of one that does, give me a holler.

By default, copyright allows you to (a) use your program for any purpose, (b) learn from it, (c) modify it for yourself, and (d) keep an archival copy. Most EULA's restrict (b) and (c). The GPL adds additional rights. That is why it is unique. If you know of an EULA from a major vendor that adds additional rights that normal copyright wouldn't give you, let me know.

Re:Not a win, but a settlement

[ClosedSource]

"Incorrect. It depends simply on copyright law. The GPL takes away NO FREEDOMS that are given by default by copyright law. Instead, it adds to them."

Again, copyright law may be at the core of the GPL but it's not relevent to everything. If code is given to the public domain, copyright is irrelevent. Thus the maximum rights an author can give you to his code is through releasing it in the public domain. Chosing the GPL means you wish to restrict rights relative to the rights you could grant through the public domain.

"Incorrect. EULA's don't generally give you a right to distribute source or binary. If you know of one that does, give me a holler."

My bad. I should have said "people don't have the automatic right to distribute source or use/distribute binary".

You have no right to use a copyrighted program without permission. The EULA gives you that right in exchange for money.

Re:Not a win, but a settlement

[johnnyb]

"You have no right to use a copyrighted program without permission. The EULA gives you that right in exchange for money."

That is incorrect. The sale gives you that right. The EULA is a post-sale contract. Music does not include an EULA, yet it is covered by copyright. EULA's does not give you any right you did not already receive by paying money to legitimate channels.

Re:Not a win, but a settlement

[Tony Hoyle]

Incorrect. It depends simply on copyright law. The GPL takes away NO FREEDOMS that are given by default by copyright law. Instead, it adds to them.

It also takes away your right to link with the code unless you also GPL all your code - which is a freedom I have already (and not covered by copyright law as copy!=link).

Re:Not a win, but a settlement

[ClosedSource]

"The sale gives you that right."

Well, it would if the company were to sell it to you on those terms. They could also sell it to you as a public domain item (although you probably wouldn't buy it). As I said before, not every right or transaction automatically involves copyright and copyright alone.

The bottom line is that neither the GPL nor EULA's give third parties the maximum rights they could get through public domain or the BSD license. To me that is much more important then the somewhat artificial argument about adding or subtracting rights.

Re:Not a win, but a settlement

[shaitand]

Yes but GPL'd code is copyrighted material, therefore the default as long as copyright exists, is copyright and NOT the public domain.

In all cases the GPL grants rights because the GPL can only be applied to copyrighted code. You can't GPL code which is in the public domain.

Re:Not a win, but a settlement

[shaitand]

It is worth noting that most EULA's actually restrict A and force you to agree to refrain entirely from B, C, and D.

Re:Not a win, but a settlement

[shaitand]

Yes, it is possible for the holder of copyright to grant more rights than the GPL grants. But the GPL always grants rights you did not have before agreeing to the GPL.

After all, you can GPL rather than open to the public domain (as many choose to do for good reason) but you can NOT GPL something in the public domain.

Re:Not a win, but a settlement

[johnnyb]

"It also takes away your right to link with the code unless you also GPL all your code - which is a freedom I have already (and not covered by copyright law as copy!=link)."

That is incorrect. As a user, you could do this.

Re:Not a win, but a settlement

[shaitand]

"It also takes away your right to link with the code unless you also GPL all your code - which is a freedom I have already (and not covered by copyright law as copy!=link)."

No it does not. Or rather, this is not established and your argument is not logical.

If linked code is derivative than you do NOT have a legal right to link to copyrighted code. If Linked code is NOT derivative than the GPL does not apply.

Personally, I have never heard a legitimate argument to support the linking issue and find it hillarious that people seriously entertain the idea. Probably the biggest support for dismissing the link issue you stated yourself copy != link. The entire link issue was raised as FUD by anti-gpl special interests who wanted an element of uncertainty to apply to using the GPL.

Re:Not a win, but a settlement

[johnnyb]

"The bottom line is that neither the GPL nor EULA's give third parties the maximum rights they could get through public domain or the BSD license."

True, but that has nothing to do with anything we are talking about.

"To me that is much more important then the somewhat artificial argument about adding or subtracting rights."

No, if you look at the subject we were actually talking about, it was whether or not the GPL is enforceable in court. The answer is yes, because it ADDS rights instead of taking them away. You would not have the right to redistribute a GPL'd program EXCEPT FOR the GPL. If the GPL is ruled invalid, that would not give people the right to copy it willy-nilly, it would actually cause it to revert to the normal copyright law of "you can't copy this".

Other EULA's, however, since they REMOVE rights, if they are deemed invalid, users will gain back the rights they lost.

Re:Not a win, but a settlement

[ClosedSource]

"After all, you can GPL rather than open to the public domain (as many choose to do for good reason) but you can NOT GPL something in the public domain."

That may be true for the orginal work, but you can create a derivative work from a public domain source and license it under any scheme you want. So there really isn't anything you can do with GPL'd code that you can't do with public domain code.

Re:Not a win, but a settlement

[ClosedSource]

"In all cases the GPL grants rights because the GPL can only be applied to copyrighted code. You can't GPL code which is in the public domain. "

Obviously, you can't say "I'm putting this code in the public domain and Oh, by the way, I'm licensing it under the GPL too." So what?

The fact is that the GPL isn't the most liberal license or legal arrangement possible. Get used to it.

Re:Not a win, but a settlement

[ClosedSource]

"No, if you look at the subject we were actually talking about, it was whether or not the GPL is enforceable in court. The answer is yes, because it ADDS rights instead of taking them away."

Adding rights is neither necessary nor sufficient to guarantee that a license will be enforceable in court.

"Other EULA's, however, since they REMOVE rights, if they are deemed invalid, users will gain back the rights they lost."

Gain back what rights?

Re:Not a win, but a settlement

[ClosedSource]

I wonder if you could legally create a derivative parody of a GPL'd application and distribute it without source?

Re:Not a win, but a settlement

[ClosedSource]

So you think if the EULA for the software you bought is found illegal you're just going to get all the rights from simple copyright law for the money you already spent and that's the end of the story?

At best you'd probably get the right to return the software, get your money back and you and the company will part ways. The company will narrowly revise its EULA to address the court's concerns and then it's back to business as usual.

Re:Not a win, but a settlement

[GooberToo]

Except that people disagree that they are accepting the terms of the license. Contract law currently says that EULAS are not legal yet people still continue to enforce it. Again, EULAs are in wide use but that are NOT commonly accepted.

Re:Not a win, but a settlement

[zotz]

"You are forgetting that agreeing to a license is accepting it. As such, being widely "used" is the same as being widely "accepted"."

Do you honestly think that most people even read those "agreements?" And when the click on "I agree" do you honestly think they are not saying to themselves something along the lines of "yeah right?"

Granted, the law may hold this to be agreement, but what do you think is going through people's minds?

These self same agreements are one of the reasons I switched over to Free Software. When I bought my Vaio a year or two back, I booted Knoppix and did a hard disk install withoug ever letting XP boot for the first time. "I agree" - no thanks, I don't.

all the best,

drew

http://www.lulu.com/zotz

Re:Not a win, but a settlement

[Minna Kirai]

In fact, the GPL is unlike most other EULAs in that it _adds_ rights rather than takes them away.

To even use the phrase "most other EULAs" next to "GPL" is wrong. The GPL is not an "End USER License Agreement", because the USER of software never has to agree to, tear through, click through, or even look at the GPL.

It makes as much sense to say "The 747 is unlike most cars in that it has wings"

Re:Not a win, but a settlement

[Minna Kirai]

Adding rights is neither necessary nor sufficient to guarantee that a license will be enforceable in court.

Wrong. Ask your lawyer to tell you about "mutual exchange of consideration"

Re:Not a win, but a settlement

[Minna Kirai]

"I'm putting this code in the public domain and Oh, by the way, I'm licensing it under the GPL too."

You absolutely can do that. I could also sell my car for $50 or $500, according to the buyer's preference.

The fact is that the GPL isn't the most liberal license or legal arrangement possible. Get used to it.

Nobody said it was. You just created that strawman, so you can pretend you're defeating someone in an argument.

Re:Not a win, but a settlement

[shaitand]

"That may be true for the orginal work, but you can create a derivative work from a public domain source and license it under any scheme you want. So there really isn't anything you can do with GPL'd code that you can't do with public domain code."

That is what is what we call an invalid argument. Your conclusion "there really isn't anything you can do with GPL'd code that you can't do with public domain code", does not follow your premise "you can create a derivative work from a public domain source and license it under any scheme you want".

And actually you can NOT license public domain material. You can create a derivative work and license the collective and the parts you created, but the public domain material remains in the public domain, NOT under your license.

Nobody sane would try to claim the GPL gives rights that are not available with public domain material. I know I certainly did not.

Re:Not a win, but a settlement

[johnnyb]

"Gain back what rights?"

The rights terminated by the EULA.

Re:Not a win, but a settlement

[shaitand]

No, you can not. Public domain material remains in the public domain regardless of what piece of paper you include when you distribute it.

Although anyone can draw up a contract or license that says anything, after rendering something into the public domain you have no more right to it than the person your trying to license to.

Re:Not a win, but a settlement

[shaitand]

My point is that you did not claim there was a more liberal medium under which to distribute code.

You said that there was a question as to whether the GPL imposed restrictions or bestowed rights.

For some odd reason you seem to want to imply that the existance of the public domain has even a vague relation to whether or not the GPL is a relaxtion of the default copyrighted state.

Re:Not a win, but a settlement

[Pofy]

>Well, it would if the company were to sell it to
>you on those terms.

To be completely correct, USE, is not covered at all by copyright (with the exception of countries that has DMCA like laws that added access as a right to the copyright holder, usually it is about corcumventing access protection though, not direct use). As such, ordinary USE can not be copyright infringement. And thus, you don't need any permision, license or any EULA to use something.

Re:Not a win, but a settlement

[WNight]

Well, technically, they sort of make a feeble attempt to "Add value", in that you can't get updates without registering (accepting the EULA again) on the website. They here doesn't just mean Microsoft, it's also Adobe, Blizzard, Valve, and many other companies.

Do they really add value? Not unless you think that patches to flawed software "add" value - to me they're a required piece of the software. Especially now since network play is such a bit part of games - keeping upgrades of a p2p game (Quake3, for instance) to subscribers actually diminishes the value of the original game to everyone else (and the subscribers, when the player-base shrinks).

Making the user sign an EULA to get patched really is no different than the car dealer not being willing to do warranty repairs unless you purchase another service.

Re:Not a win, but a settlement

[man_of_mr_e]

When I said OEM agreement, i was talking about MS's agreements with OEM's that the courts ruled illegal. Not EULA's. We're talking physical, signed contracts that lawyers have reviewed.

Re:Not a win, but a settlement

[zotz]

Sorry for the misunderstanding then.

Unfortunately, there are times when I find being dense all too easy.

all the best,

drew

Re:Not a win, but a settlement

[ClosedSource]

I don't think the phrase "adding rights" appears in the definition of "mutal exchange of consideration", but correct me if I'm wrong.

Consideration is something bargained for in exchange for something else. (It's interesting that as a practical matter, real bargaining rarely takes place between an individual and an organization; neither EULA's or the GPL are bargained)

In the case of closed source software, you pay money and agree to abide by the terms of the EULA. In exchange, the company's allows you to use the software.

Re:Not a win, but a settlement

[ClosedSource]

"As such, ordinary USE can not be copyright infringement. And thus, you don't need any permision, license or any EULA to use something."

So, I can just walk into a bookstore, pick up a book and walk out without paying for it and not break the law?

In those situations where the author has given you permission to access his copyrighted material without any further restrictions beyond those established by copyright, you have the right to use it. You have no automatic right to use copyrighted material for any purpose.

You can borrow a book from the library and read it soley because the copyrighted material has been purchased by the publisher from the author.

Re:Not a win, but a settlement

[ClosedSource]

You're right. By using the phrase "really isn't" I meant to convey that there's nothing that most authors would want to do with GPL'd code that they couldn't do with public domain code. I didn't actually say that though, so your critism is valid.

On the other hand, I suspect that there's plenty of public domain code in GPL'd projects. For years, authors have provided sample code for just about every type of software and algorithm possible with the stipulation that the reader can use the code for any purpose.

Re:Not a win, but a settlement

[ClosedSource]

"Making the user sign an EULA to get patched really is no different than the car dealer not being willing to do warranty repairs unless you purchase another service."

Actually, it's very different in several ways.

First, most car purchases include a specific warrenty in writing. Software typically doesn't.

Also agreeing to the EULA online is just a reaffirmation of something you've already agreed to when you installed the software. If you intend to follow the terms of EULA you already agreed to, this is just an inconvenience.

Re:Not a win, but a settlement

[Minna Kirai]

No, you can not. Public domain material remains in the public domain regardless of what piece of paper you include when you distribute it.

Yes, you can. Material released under some license remains available under that license, regardless of whatever other ways you release it later, even if they are less restrictive.

Re:Not a win, but a settlement

[Minna Kirai]

In the case of closed source software, you pay money and agree to abide by the terms of the EULA.

Nope. In typical software sales, you never agree to follow the EULA.

In exchange, the company's allows you to use the software.

The company has no right to allow or disallow your use of the software, assuming they've already sold it to you. Their only controlling rights are copyright, which allows them to prohibit reproduction or distribution, not use.

Imagine if Bill Gates telephones you tonight and explains that he's decided everyone who's ever posted on Slashdot will no longer be allowed to use Windows XP, and that you'll be getting rebate checks in 2-6 weeks. That sounds implausible to me, but is consistent with the rules of a fantasy world where companies have the authority to "allow" users to run software.

Just imagine the consequences if a publisher could retroactively disallow the use of their products after the sale was finalized!

Re:Not a win, but a settlement

[shaitand]

When you render material into the public domain it is drastically different than releasing it under a less restrictive or alternative license.

Rendering something into the public domain technically does not require distributing anything to anyone under any terms. Rendering into the public domain is literally the process of irrevocably and permanently waiving all copyright to the material in question and prematurely giving all of your former rights to the public.

Re:Not a win, but a settlement

[ClosedSource]

"Nope. In typical software sales, you never agree to follow the EULA."

So in typical software sales you note the message than indicates opening the seal on the CD means you agree with the EULA and you don't agree with it and return the software for a refund? I guess software companies don't make very much money.

Re:Not a win, but a settlement

[Pofy]

>So, I can just walk into a bookstore, pick up a
>book and walk out without paying for it and not
>break the law?

Lets see, we are talking about copyright laws here. So yes, you can do that without you commiting any copyright infringement. There are of course OTHER laws that prevent such a behaviour, but that has nothing to do with copyright laws.

>In those situations where the author has given
>you permission to access his copyrighted material
>without any further restrictions beyond those
>established by copyright, you have the right to
>use it.

You don't need any permission ot access a work (or use it), check the copyright law, there is nothing about access (in DMCA and similar laws, there is a new added right to put in access control though and basically deal about circumventing such protections).

So yes, you can use a copy of a work that has copyright on it without any permission needed. Go read any copyright law you want. Copyright basically deals with copying, distribution, public performance and similar thing, not about use.

>You have no automatic right to use
>copyrighted material for any purpose.

So this is not true. You may look at it from the other way arround. What PREVENTS you from using something? Copyright law most definately does not prevent you from using it (as mentioned above, so read the copyright law). Copyright law does not say you need a permision to use. It says you need one if you want to make copies of it though).

With your example of stealing from a shop, that is regulated by normla property laws, which say that you can't take something from someone. That has nothing to do with copyright laws at all.

Re:Not a win, but a settlement

[WNight]

Except that EULAs aren't binding, so any terms in them are meaningless. Which means it's back to the software company applying after-sale limitations, much the same as a car dealer who refuses warranty service.

If EULA were valid in any way, the question of their wording and in/exclusions would matter. They are not, it does not.

Because they aren't valid contracts, you can answer however you like and not be bound by it.

Re:Not a win, but a settlement

[ClosedSource]

"Because they aren't valid contracts, you can answer however you like and not be bound by it."

You guys are living in a fantasy world. Do you really think that large corporations would pay millions of additional dollars in order to comply with the terms of EULA's if they weren't valid?

Re:Not a win, but a settlement

[ClosedSource]

"With your example of stealing from a shop, that is regulated by normla property laws, which say that you can't take something from someone. That has nothing to do with copyright laws at all."

Ah, but people have been claiming here that copyright gives you the right of use. If it really did, you could take the book. "Normal property" laws as you call them, limit the power of copyright to those situations where the material was obtained legitimately.

I'm getting tired of being at the bottom of this pile-on, so this is my last post on the matter.

Re:Not a win, but a settlement

[WNight]

Why not? They've convinced you that they're valid. They don't need to convince a judge if everyone is scared. Total cost to them, some time from a lawyer already on staff.

Do you really think they wouldn't have enforced them if they knew they worked? Surely there's someone, somewhere, that a company like Microsoft or Adobe could sue, given their inclination to sue and all the requirements in an EULA which nobody could ever live up to.

Re:Not a win, but a settlement

[Minna Kirai]

So in typical software sales you note the message than indicates opening the seal on the CD means you agree with the EULA and you don't agree with it and return the software for a refund? I

Well, I personally am a Linux user, so don't have direct experience... but, I suppose that typical users see the message on the wrapper, don't agree with it, and go ahead and tear open the box anyway, regardless of their (dis)agreement.

That is their right, because the box itself is their own physical property. They can tear it, burn it, or dissolve it in acid, and no other entity can construe those actions as agreement to a legal contract.

For example, "If you agree to give me $500, please move away from this computer".

Just because I say/write "do XYZ to agree to a legally binding contract" doesn't meant that anyone who does XYZ is now bound by my document, unless XYZ was something they weren't allowed to do without my permission. Prior to selling you a copy of the software, the publisher had the right to hold out for agreements from you. Once the CD-ROMs were back in the buyer's home, however, the seller has no more leverage to demand an agreement (unless she extents some other consideration)

Re:Not a win, but a settlement

[Minna Kirai]

Do you really think that large corporations would pay millions of additional dollars in order to comply with the terms of EULA's if they weren't valid?

No, I don't think they would. And since they DON'T do that, I haven't got any problem. (If you know a couterexample, go ahead)

Note that many corps do enter specific licenses for software, and will enter into an agreement if it gives them rights BEYOND what they get automatically when purchasing one copy of the software. Primarily, a site-license allows them to install more than 1 copy of a program from a single set of distribution media, something that otherwise would be copyright infringement.

Running a single install of a purchased program is not copyright infringing (in the USA), so it provides no leverage to the publisher.

GPL = gives additional rights = valid
site-license = gives additional rights = valid
normal EULA = takes away rights = invalid

Re:Not a win, but a settlement

[Minna Kirai]

Well, it would if the company were to sell it to you on those terms.

Wrong. Once a person sells you something, you own it, and can do anything with it you can do with any other of your property.

I should point out to anyone else who reads this that you are (intentionally?) conflating "copy of" and "copyright to". Only the former is relevant here, as the selling of copies outnumbers the selling of copyrights by a billion to one.

Well, it would if the company were to sell it to you on those terms.

Please provide any example of a company establishing "terms" during (or prior to) the sale of a copy of software.

The clerk at Computer Land doesn't extract a promise not to execute the software unless you agree to an auxilliary license, to be displayed later. She takes the cash, you take the disc, she says "Have a nice day", and you walk out.

Do you somehow think it's illegal to buy an audio CD and listen to it, because the publisher didn't specifically authorize you to play it? Do you maybe not understand that buyers of media automatically get the right to view/use it in the most normal way?

Suing for damages? Inappropriate, IMHO

[goldspider]

Wouldn't simply compelling the defendant to release the code with the appropriate acknowledgements be more in line with the community spirit of the GPL? A monetary settlement seems unnecessarily punitive.

thank you very much... not

[advocate_one]

I wondered why it had gone extremely slow... by the way, the article poster has got it wrong. It's not a victory per se for the GPL as it never went to the finish, the two parties settled instead. However, it is possibly good news for those of us frustrated at companies tying up international standards with submarine patents and other IP trickeries... Microsoft watch out.

Re:thank you very much... not

[Anonymous Coward]

Even moreso, I don't see how the GPL came into it at all. Looks like the whole legal question was whether the SAE owned copyright on their specification (and implementations thereof). The evaluation was whether something that is "law" could be copyrighted, and whether SAE owned software written by someone else.

The interesting part is that if this bit of software is used, the auto companies will have to provide source code with every car, or at least a copy of the GPL and a link to their website. Won't that be a coup?

GPL aside, I totally agree with you. Law has to be transparent. Seems like a tactic of the evil regimes of lore that only the chosen few were allowed to know the law, and anyone else could be arrested for not following laws they didn't know about. On the same level, requiring people to pay a private party for permission to obey the law is just as bad, especially if the private party sets up a high barrier to entry. (OTOH, it's a good capitalist system to have private parties write codes and sell them. Leave technical issues to engineers, not lawyers. People still shouldn't have to pay to read or follow the law, though.)

At least the courts are still doing their job.

Re:thank you very much... not

[zotz]

Is it time that we modified the concept "Ignorance of the law is no excuse?"

Not abolished, mind you.

all the best,

drew

Re:Suing for damages? Inappropriate, IMHO

[Anonymous Coward]

Well, the donated half the profits back to SAE (the defendant). Presumably the rest was for court costs/legal fees. If you read TFA, the lawyer for the plaintiff basically states this--the goal was not to win money, but to improve SAE's processes. There was no intent even from the plaintiff to punish.

Re:Suing for damages? Inappropriate, IMHO

[Anonymous Coward]

And how would you propose to deter other companies from stealing GPL code, if their only risk was a little egg on their face and a slap on the wrist?

How would you offset the costs of determining if some code has been stolen, as well as the lawyer/court fees in order to prove it before a judge?

So why start a new project?

[chaffed]

Freediag is stagnant because people have lost interest. If they want to implement new protocols within the 0BD II standard they should pick up Freediag and continue the development. Freediag is almost completely finished the portability portion of it's development. It compiles under most operating systems.

I guess Yay! for GPL being upheld in court. Yay! For independent an DIY auto repair folks. However, bummer for a project that really needs some new blood.

Re:The Penguin has grown [strong] teeth!

[Anonymous Coward]

a.) The GPL and Linux are not one and the same.
b.) This case did not involve Linux in any way.
c.) It's not even the case that this is a legal victory for GPL. The existance of GPL was found persuasive by this particular defendent in reaching a settlement. It's not a precedent for "more prey."

Re:Suing for damages? Inappropriate, IMHO

[spiritraveller]

AFAIK, copyright law does not provide for compelling someone to do anything... other than to pay damages and stop violating the author's copyright.

Besides that, why shouldn't the author's seek monetary damages??? It costs them money to go to court and to force the violator to quit infringing on their rights.

What is in the community spirit of the GPL is something that will help ensure that future violations do not occur. Playing hardball will help that happen. Being "nice" about it will not.

If you don't believe me, ask the RIAA.

I don't see anything for the GPL in here

[Qzukk]

Yes, the code was written under the GPL, yes the SAE did then take that code and start selling it as if they had written it and without the GPL, but it seems that the entire process was over whether the SAE owns their own regulations after the government steps in and turns them into Law.

The answer, as it was in the prior case cited, was "no".

It seems that the license of the software involved wasn't related to the case at all, other than as a "starting point" for the case to begin. If the code had been BSD-licensed, they wouldn't have been suing the SAE first. If nothing else, it simply indicates that you can issue a DMCA takedown notice for GPL'd code someone else is using without obeying the GPL license.

Re:I don't see anything for the GPL in here

[The Wicked Priest]

I agree with your characterization (that this really has nothing to do with the GPL), but I'll go further: SAE was attempting to apply patent standards to material on which it could, at most, only claim copyright. So we don't even have to get to the issue of ownership of public law.

Re:Suing for damages? Inappropriate, IMHO

[Anonymous Coward]

"Infringed upon", then, you "pedantic twat".

Re:Suing for damages? Inappropriate, IMHO

[Shugart]

Without the threat of punitive damages, why would someone pay any attention to the GPL?

GPL win how?

[mooingyak]

As I read this, it's a copyright case only. One side (SAE) claimed rights to code that the other side (DrewTech) had released via GPL. It could have been something proprietary, and SAE would still have lost the case from what I understand.

It's like saying "Axemurderer convicted of killing author of GPL-released code" is a big win for the GPL. It wasn't part of the case, near as I can tell.

Re:Suing for damages? Inappropriate, IMHO

[Anonymous Coward]

You say "stolen" as if the "victim" of the "crime" is deprived of property.

Code can't be "stolen".

Er....no. Sorry, this is the hippie "file sharing is perfectly OK" bullshit that drives me nuts.

You claim taking my code does not deprive me of property. Not so. If I own it, I have the right to license or charge for it. By taking it, you deprive me of the oppoerunity to sell it to you. I have now been deprived the income I would have made from that sale.

So, you claim "Well, I wouldn't have PAID for it, so no harm done." Sorry, still wrong. Assuming that the code in question is something I charge money for, then in taking it you have stolen something of value--the value that others are willing to pay for it. The thief who breaks into a store cannot claim "well, I wouldn't have ever bought that jewelry, so no harm done.

Ah, but code is infinitily copyable--by taking it, I'm not depriving someone else of their ability to use it. With due respect, this is irrelevant. The issue is whether you are using/taking someone else's property without permission. By the "no one is deprived" argument, radio stations would never need to pay license fees to music artists--by playing a song off a CD they own, they're not depriving anyone else of the ability to play the song...

Re:Suing for damages? Inappropriate, IMHO

[goldspider]

"...stop violating the author's copyright."

But we're talking about the GPL here; doesn't "stop violating the author's copyright" == "compelled to release code and acknowledge authors"?

Non-Infringing Use of the DCMA?

[Gallenod]

"If nothing else, it simply indicates that you can issue a DMCA takedown notice for GPL'd code someone else is using without obeying the GPL license."

Somehow, the thought of using the DCMA to defend the GPL just seems highly ironic, as well as downright unclean.

Re:Non-Infringing Use of the DCMA?

[Gallenod]

Sorry...I meant DMCA and managed to mistype it. Twice. :/

Re:Non-Infringing Use of the DCMA?

[bani]

why? use the DMCA to destroy the system. seems right to me.

Re:Non-Infringing Use of the DCMA?

[Brandybuck]

Get used to it. The GPL v3 is going to start regulating the use web applications, and there's nothing in classic copyright law that allows them to do this. Either they claim the right to regulate usage through the DMCA, or they stop pretending the GPL isn't a EULA-style contract.

Re:Non-Infringing Use of the DCMA?

[XO]

preach it, brother!

use it to destroy itself.

Re:Non-Infringing Use of the DCMA?

[Brandybuck]

The GPL doesn't regulate the use of any application. It does (or more accurately, "will" in v3), however, regulate the development of GPL'd web-based applications.

It has nothing to do with the development, because the GPL won't "kick in" until *after* development is complete and you begin to *use* the software on your server. It's the allowing third parties to use the software that the GPL wants to regulate. Develop the application on Monday and no one cares. Give a third party the ability to use it over a remote connection on Tuesday, and you've suddenly violated the GPLv3. With no additional development. ...but I think you'll find most of the industry is behind the same definition (ie, the enduser providing inputs and receiving outputs from a given application).

And how does this differ from a web application? The user sends in the input via CGI and receives the outputs via http. This is pure use. And the GPL v3 is going to be regulating it.

Re:Non-Infringing Use of the DCMA?

[Minna Kirai]

and you begin to *use* the software on your server.

Completely and utterly false. The GPL has nothing to to with *use* at all. For that matter, the GPL is based on copyright law, which also has absolutely no relevance to use. Authors of software have no right to control when people use their programs- they can prohibit reproduction or distribution, but never use.

Give a third party the ability to use it over a remote connection on Tuesday, and you've suddenly violated the GPLv3.

You are inaccurately using the present tense to refer to something that does not exist yet. Although there is a reasonable chance the 3rd version of the GPL will be similar to what you say, it is dishonest to present it to readers as if it were a done deal.

Re:Non-Infringing Use of the DCMA?

[Brandybuck]

You are inaccurately using the present tense to refer to something that does not exist yet.

Of course it doesn't exist! No one said it did! But be that as it may, from everything we can tell about the GPLv3, it sounds suspiciously like it will govern usage of the software.

Searched everywhere but Google?

[AtariAmarok]

"What's the "GNU Public License"? After extensive web searching, I cannot find any evidence that a license with such a name exists"

There are more than 300,000 pages referring to "gnu public license", and that is just in Google. That is just with quotes, too! One of the links points to a good wikipedia article, as well.

Re:Searched everywhere but Google?

[clandaith]

Google? What is that? I searched my harddrive for it and found nothing on it? Hmm... Maybe it's out there on that intarweb thing?

Re:Searched everywhere but Google?

[Brandybuck]

It's a joke! Laugh!

Here's the punchline for the humour-impaired (98.67% of Slashdot): There is no license named "GNU Public License". Really there is not. The "G" in "GPL" stands for "General".

Re:Searched everywhere but Google?

[sjbcfh]

There are more than 300,000 pages referring to "gnu public license", and that is just in Google.

Except that it is the GNU General Public License, not the "GNU Public License", which is what the poster was pointing out.

Re:Searched everywhere but Google?

[Jeremi]

Hard drive? What is a hard drive? I riffled through my entire stack of punched cards and came up with nothing...

Re:Searched everywhere but Google?

[drix]

Wow. You are quite possibly the most thickheaded person I have ever seen post here. No mean feat, that--congratulations.

Re:Searched everywhere but Google?

[BlueWonder]

There are more than 300,000 pages referring to "gnu public license", and that is just in Google.

Sure. There are more than four thousand Google hits for "life on Jupiter", so it is now proven that there's life on Jupiter, right?

One of the links points to a good wikipedia article, as well.

That's about the GNU General Public License. We're discussing the "GNU Public License" here.

What a nice gesture!

[SmokeHalo]

I think the most interesting point in the article is that the developers won a $75K settlement and then turned right around and donated half of it back to the people from whom they won it. Now that's a class act!

Re:What a nice gesture!

[3waygeek]

Well, the Drew in DrewTech is an old college buddy of mine; he's a pretty cool guy.

The Penguin has grown strong teeth, Robin!

[AtariAmarok]

"Sounds like the lastest idea for the next crappy linux game"

Or the plot for "Batman 6".

Re:Suing for damages? Inappropriate, IMHO

[0xABADC0DA]

By taking it, you deprive me of the oppoerunity to sell it to you. I have now been deprived the income I would have made from that sale.

Iow, you want the government to give you an equal opportunity to make all of the potential sales you can over somebody else's right to do what they want with their purchased property, their computer. Not only are you for affirmative action (ie equal opportunity) but also for taking away real, personal rights over physical property away in favor of virtual, potential rights over information. So in essence you are a neo-liberal libertarian.

Question

[goldspider]

Is it still OK to violate RIAA and MPAA copyrights?

Re:Question

[node 3]

Is it still OK to violate RIAA and MPAA copyrights?

Yes.

Duh.

Re:Question

[The Wicked Priest]

Leaving aside the false conflation of GPL and P2P advocates... This is only "situational ethics" if you deliberately misunderstand and mischaracterize the issue. The issue is not respect for the law or for copyright. No one cares about that. The issue is freedom of information. On one front, that might be achieved by flouting copyright; on another, by using it as a tool against those who flout it. There's no inconsistency there, because it was never about the law; it's about freedom, as an absolute value.

The GPL was designed to subvert copyright from within. It is not hypocritical for GPL advocates to hold proprietarians to the same standards as they seek to hold others to. The proprietarians must stand consistently for law, or their system falls apart. But GPL advocates stand consistently for freedom, with or without the law. In other words, closed software depends on the law to keep it closed; but free software does not depend solely on the law to keep it free -- because, in the absence of copyright law, the only thing that could restrict freedom of information would be secrecy, which is largely incompatible with publishing.

(Note: I am aware that some people support the GPL for more pragmatic than ideological reasons, but it was constructed for ideological ones.)

Re:Suing for damages? Inappropriate, IMHO

[chromatic]

The infringer could also stop distributing modified versions.

Re:Suing for damages? Inappropriate, IMHO

[cpt kangarooski]

No, stopping distributing copies or derivatives of GPLed works, and possibly destroying extant unlawfully made articles, would suffice.

Re:GNU Public License?

[KingBahamut]

Lol...is this guy for real?

Making brash statements like that will get you into trouble, mon ami. Especially in places like this one.

Results 1 - 10 of about 453,000 for GNU Public Licence. (0.33 seconds)

Now then, as to what it is...... This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".

Not that big a deal.

[theorbtwo]

Eric Grimm, lawyer for DrewTech: "..the only real ruling that has been made in the case is a discovery ruling by Magistrate Judge Paul Komives, permitting DrewTech to take the deposition of a third-party witness."

It's certianly a win for the GPL: the judge refused to grant summary judgement, and the settlement clearly showed that they were afraid of the GPL.

But it is not a judge ruling "yes, this license is valid and binding". Indeed, it's not a judge ruling anything.

Re:Not that big a deal.

[schon]

It's certianly a win for the GPL: the judge refused to grant summary judgement

No, it's not. In a motion for summary judgement, the judge must act as if anything that has not been decided (ie is the GPL binding) must be interpreted as if it's 100% in the non-moving party's favour - so it's not a win in any sense that way.

Think about SCO - the fact that their multi-billion-line fishing expedition probably won't get them any evidence was enough for the judge to deny IBM's motion for summary judgement.

the settlement clearly showed that they were afraid of the GPL

No, it might also show that they thought that settling was cheaper than fighting.

Re:Suing for damages? Inappropriate, IMHO

[spiritraveller]

But we're talking about the GPL here; doesn't "stop violating the author's copyright" == "compelled to release code and acknowledge authors"?

No. That is more than would be required of the defendant to stop violating the copyright. To stop violating the copyright, he can simply stop distributing the material. Releasing his own code (which he has based on GPLed code) might be an option the defendant would have, but it is not something he can be forced to do.

How do you tell?

[Migraineman]

If somebody distributes a binary program with no source, how is anyone supposed to tell if they just linked to a library versus incorporated the original GPL'd source into theirs? If all you have is the executable machine code, I'm not sure you could tell the difference.

Similarly, allowing library linkage to be a valid way to bypass the GPL would just result in everybody putting existing GPL sources into a "library structure" and linking in. Congrats, you'd have a way to completely de-tooth the GPL.

Using a library is just an organizational technique that keeps an individual source file from becoming too large. You can pre-compile a library to keep your compile times down. The net effect is that you're bolting the library onto your project, and you're deriving benefit from that linkage. If you don't want the GPL baggage, don't expect to get any free benefit from GPL'd works, either. You're perfectly welcome to develop the code yourself. Nobody requires you to use GPL'd code.

Re:How do you tell?

[Brandybuck]

Using a library is just an organizational technique that keeps an individual source file from becoming too large.

Unless of course you're using a shared library. In such a case the purpose is to provide common services to other software and merely be a code repository. If you don't want people using your GPL code, then make it a static a.out library and hide it away in libexec.

Re:GPL Derivative Works

[Shag]

Are you referring to libraries released under the GPL, or libraries released under the LGPL ("Lesser" or "Library" GPL)? The LGPL makes it pretty clear in point 6b that if you design your app to use a shared version of a library that's LGPL'ed, you basically don't have to do jack - the user is expected to have the library already (or to get it), and as long as you use the interface correctly enough that the library can be modified/updated without breaking your app, there's no problem.

Point 6a describes other ways of complying with the LGPL, which also don't have to involve GPL'ing your work, or giving people source code, or whatever.

Re:Suing for damages? Inappropriate, IMHO

[johnnyb]

"Ah, but code is infinitily copyable--by taking it, I'm not depriving someone else of their ability to use it. With due respect, this is irrelevant. The issue is whether you are using/taking someone else's property without permission."

You are confusing terms, though. You are using the word "stolen" which implies that you no longer have said item. "Unauthorized copying" more accurately describes the offense, not "stealing". Your examples show that you are confused as to the differences as well.

Making unauthorized copies is illegal. Some people also believe it is immoral. Using the term "stealing" to describe it is simply denying reality.

Also remember that the purpose of copyrights is NOT for the authors, but for the public. Copyright IS NOT a "right" of itself, but an artificial one given by the public for the public's benefit. That doesn't mean that people can decide for themselves to break that trust, but it does mean that you are dealing with something that is in an entirely different ballpark than stealing.

Legislated methods question

[gr8_phk]

This case mentions that any work incorporated into law by reference can not maintain its copyright. It's happened before (the building code case mentioned) where an existing work became law, so the original authors could not charge others or claim infringement for printing (what was previously) their material. Now shouldn't the same logic apply to patents? If someone patents some algorithm that is incorporated into MPEG, and MPEG is legislated as the standard for HDTV, shouldn't that invalidate any patent claims over the algorithm the same way copyright is over-ridden? Or is this another way patents are different from copyrights?

Re:Legislated methods question

[Almost-Retired]

Yes, thats one of the ways they are different. Dammit.

--
Cheers, Gene
"There are four boxes to be used in defense of liberty:
soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
99.34% setiathome rank, not too shabby for a WV hillbilly

Re:Suing for damages? Inappropriate, IMHO

[plague3106]

I have now been deprived the income I would have made from that sale.

You wrongly assume that a developer interested in the functionality you are selling would buy it rather then code it themselves.

Just like in the music world; if people MUST pay to listen to something and thats the ONLY way to hear it, alot of people would just opt not to hear it. How is that a lost sale?

Re:Suing for damages? Inappropriate, IMHO

[Anonymous Coward]

No, it does not.

Copyright law for infringing or derivative works only allows for the original author to affect distribution of the infringing work, or demand damages. Specifically, you can force someone to stop distributing a piece that infringes on your own, but you cannot claim ownership of their work, nor force them to continue distribution against their will.

The GPL, specifically, is a list of terms and conditions upon which you are allowed to distribute programs made from GPLed source code. Should you violate these, you are infringing upon the copyrights of the code's authors. Ergo, the authors can then sue for damages and/or an injunction against distribution.

However, it is unlikely that a judge will enforce the GPL terms (by compelling to release source) rather than sticking to straight-up copyright infringement/license violation. This is where monetary damages are most effective - by offering to reduce the punitive damages of a suit in exchange for the release of source code, the company can be 'encouraged' to comply. Furthermore, a successful punitive damages suit discourages other companies from allowing GPL violations to proceed to legal action - allowing the FSF to get them in compliance by simple nastygrams instead of expensive lawsuits.

In short - yes, monetary damages are damned well neccessary.

Re:Suing for damages? Inappropriate, IMHO

[Oblio]

Do radio stations pay license fees to music artists? I didn't think they did. (We sure as hell didn't in college radio.)

Like it mathers ...

[Anonymous Coward]

"Many people claim that the validity of the GNU Public License has not been tested in court in the US. "

Many people are not lawyer and are have no clue what the GPL is all about and what its real power are. Most people dont even know what law are in effect in the US.

The Best worldwide Law Teachers and Freedom Lawyer drafted the GPL , once the acusee get a simple explanation from a judge as to the possible effect of a penalty one might occurs from losing such a case they ALL settle.

It dont mather that they ALL settle because "Many people" said its untested in court.
And its going to be like this until there is actually one dumb enough to go all the way and loose.

"Journalist" and "reporter" used to ask question to the one who lost like I dont know : "why did you setlle ?"

That would be news worthy. I dont pay people for the fun of it , I guess they dont either ...

Re:Suing for damages? Inappropriate, IMHO

[Moofie]

"radio stations would never need to pay license fees to music artists--by playing a song off a CD they own, they're not depriving anyone else of the ability to play the song"

Circular reasoning.

You might say that you have rights to your intellectual property. Other people disagree. Fortunately (for you), for now, the courts agree with you. Don't confuse that with a natural right.

I don't agree that depriving you of a potential sale is, in any way, theft. Would I be stealing from you if I told your potential customers that your software didn't work, and that they shouldn't buy it? Should I go to jail if I did that?

Re:The Penguin has grown [strong] teeth!

[latroM]

"The GNU has grown [strong] teeth!" is more appropriate. When the GPL came out linux didn't even exist.

Re:Static vs. Dynamic linking

[Migraineman]

You make a good point. With a static link (as I was assuming,) the two pieces are bound together. With a dynamic link, you could distribute your proprietary code and have the end-user obtain the GPL library and do the final linkage. I would expect that you could distribute the dynamicaly-linked library along with the proprietary code, as long as the two pieces are distinct and separate. Hell, you could perform a sort of dynamic link using a shell script, and that structure doesn't propagate the GPL between programs.

NOT BIG WIN - NOT WIN, MAYBE BIG

[drteknikal]

If they settle, it's not a win, it's a settlement. Does not set a very useful precedent, however correct the settlement appears to be.

Until it is tried, adjudicated, and upheld, the original statement stands. At best, the GPL has been tested, but not proven.

Get your facts straight. This headline is deceptive and wrong.

the settlement really needed...

[bani]

...to stipulate ejecting the individual SAE members who decided that stealing the code was a good idea, and the individual SAE members who counterclaimed against the GPL software.

such people should be punished, not rewarded for their idiocy. ejecting them from the SAE would be an appropriate punishment imo.

imo that is the best way to "improve the SAE". not contributing money so they can continue more of the same.

Re:the settlement really needed...

[bani]

replying to myself as a followup... i would also accept a public apology written by each individual member of the SAE responsible for this mess.

if they refuse, then ejecting them from the SAE would be appropriate.

Re:the settlement really needed...

[Almost-Retired]

Now thats a novel idea, actually making the perps suffer. And I certainly don't disagree with the premise. However, bet the farm that the body of the SAE weren't terribly fond of the idea, just their attornies trying to justify their retainer.

I still think we need a National Bill Shakespear day.

--
Cheers, Gene
"There are four boxes to be used in defense of liberty:
soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
99.34% setiathome rank, not too shabby for a WV hillbilly

sycophants?

[spoonyfork]

Why does every groklaw article that shows up here rub me the wrong way ... even when I always seem to be on their ideological side of the fence.

Now there is a case in Michigan, which just settled, where the GPL not only stood its ground, it came off victorious, and this time it was very much a part of the case.

IANAL (and neither is groklaw) but how can a settlement be considered a test of the GPL or even a victory? Unless their intent is to spin the result which doesn't do anyone any good. So why are they trying to do it?

Re:sycophants?

[Anonymous Coward]

A settlement is an indication that one side has determined that they will not be able to win in court, so they try and minimize the loss. The fact that the GPL has never gone through a complete trial indicates that the people violating the GPL realize that they will probably lose.

Re:sycophants?

[spoonyfork]

whiskey tango foxtrot?

Re:sycophants?

[spoonyfork]

Settlements are conducted for reasons other than a pending loss in court. Not everyone that goes to trial wants to win. Be that as it may, a settlement is hardly a precedent setting event... which is what some people think the GPL needs. This isn't it.

Re:sycophants?

[oddtodd]

BGE - Bitter Groklaw Exile
A group of folks who became disenchanted with PJ and started a new site http://www.ip-wars.net/.
They are hounded by a troll from the CKX board (cdbaric, hence the barbaric reference) who seems to beleive he is helping make the internet safe for all of us.

Re:sycophants?

[woodforc]

I absolutely agree. The posts on Groklaw often rub me the wrong way too; and that's hard to do since I enjoy being rubbed so much. Although I too am pro-FOSS and would like to see SCO die a slow painful death, I would also like to see some attempt at objectivity when reporting the developments in the SCO case and other related events. It's like PJ is way too invested in the developments and sees everything as black and white.

Re:sycophants?

[Anonymous Coward]

Eric Grimm is the lawyer in the article and it was
he who said it was a win for the GPL, not Groklaw.

It's obvious you have a bias against Groklaw. It
shines through your unfair attack. Most legal cases
settle, by the way. If the other side has to pay you,
it's a win for you. It doesn't establish a legal precedent,
but it is a clear indication that the license was
taken seriously by both sides and the court, and
the side challenging it had to pay to settle. Duh.

Re:sycophants?

[mobilebuddha]

a settlement is an indication that one side has determined that it's more beneficial for them to settle -now-.

this in no way indicate the strength of GPL, nor does it describe the fact that GPL is proven under the law.

Re:sycophants?

[spoonyfork]

No shit dude, look at the other posts in my thread and others for this article. Someone sees real or perceived "attacks" and responds to all such posts with Karl Rove-like zeal. This person should get a job in White House press office. They're quite reactive at spinning dissenting opinion to make them seem more favorable and the "attacker" discredited. Fascinating.

Re:sycophants?

[spoonyfork]

Thanks for proving my point. Find another case and try again. Next time have a victory before claiming one. Jackass.

No, we're not greedy...

[gillbates]

From the article:

you had the SAE, the standards body which publishes the standards, which essentially tried to claim copyright on the software and intended to charge DrewTech thousands per year to use the very software DrewTech employees had written and released under the GPL. [emphasis mine]

Nothing says greed like charging someone else for the right to use his own work.

The problem with the patent system is not that it rewards the inventor - that's fine - but that it also allows a lazy but devious patent applicant to make a profit at the expense of those who actually implement the design in question. Nothing could be closer to communism, in spite of what Microsoft and others might say.

In fact, if one really thinks about it, patents are probably the most anti-capitalist, anti-freedom, anti-progress part of our Constitution. They are the equivalent of economic terrorism - patent liability can strike any business, anywhere, with devastating effect.

Ok, I know it's kind of trollish to equate patents with terrorism, but at least it provides a way of explaining the situation to the average, non-technical person. They'll at least understand the appeal to terrorism (**GASP!! THE HORROR!!**).

Re:No, we're not greedy...

[Almost-Retired]

In fact, if one really thinks about it, patents are probably the most anti-capitalist, anti-freedom, anti-progress part of our Constitution. They are the equivalent of economic terrorism - patent liability can strike any business, anywhere, with devastating effect.

While I can sympathize with this sentiment, there are a couple of case I can relate to where the cease and desist orders were simply ignored.

The most recent case occured maybe 7 or 8 years ago now, in the broadcast industry, where we all got a letter from some shyster outfit demanding royalties of many thousands per year for using their patented technology in the government mandated Emergency Alert System that was put in place to replace the outgrown and outmoded EBS system that had been in place since the 70's or so.

We all made very pointed phone calls to our senators and reps, to the people who sold us the stuff, and to the commission, stateing point blank that we were damned if we were going to pay this annual fee to anyone when to comply with the new rules cost us 5 to 15 thousand for new gear in the first place, and non-compliance was not an option if we wanted to keep our license. We used words that weren't very civilized in many of those conversations.

It must have done some good because none of us that I know of ever got a 3rd letter demanding we pay up. Most of us got a second, even snottier letter, about 30 days after the first. It took 3 friggin years, and there wasn't any publicity at all, but eventually the USTPO reviewed the patent and "found it wanting due to prior art".

We came to the conclusion the legal sharks had overheard a dinner conversation in a greasy spoon someplace, made notes on a napkin, and went flying to the USTPO to patent it, 2 years after it was a fait acompli in the industry by government edict.

Like I said before, we need a National Bill Shakespear Day.

--
Cheers, Gene
"There are four boxes to be used in defense of liberty:
soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
99.34% setiathome rank, not too shabby for a WV hillbilly

morons

[XO]

What morons would donate half their settlement back to the company that gave it to them, even if they do get it as a tax write off?

If you need the tax writeoff, you can donate it somewhere else. The SAE, being part of the automotive conglomerate, tried to fuck these developers, they got busted, and the developers just rolled over and LET THE SAE fuck them.

Some charitable good will, to say "oh, we caught you this time, now you'd better be more careful stealing other people's shit"???

Here I thought code people were generally the smarter of the bunch... *wtf*

Re:morons

[ReelOddeeo]

From TFA...

PJ: Why did you donate back half of what you won under the settlement?

Eric: The reason for donation of half back is because the purpose of the lawsuit always has been to benefit and improve the SAE. It may have been necessary to drag them kicking and screaming up the learning curve, but my client has done so precisely because the organization needed the benefit of the learning experience.

The whole point is that DrewTech has been very generous to the SAE by donating 1/2 of the money back as a charitable contribution, to symbolize the educational benefit conferred on the organization (in particular, organization staff -- as distinct from the Membership, who mostly tend to "get" the GPL) through the mechanism of the lawsuit as a whole.

Okay, now it's official (slightly off-topic)

[bonch]

Now that people are using copyright law to protect ownership of GPL source code, people can no longer in the next breath defend copyright infringement on P2P networks.

If you use intellectual property and copyright law to defend the GPL and go after infringers, then there is nothing wrong with the RIAA protecting its intellectual property using copyright law and going after infringers.

Re:Okay, now it's official (slightly off-topic)

[daveschroeder]

I'm glad someone realizes this.

And I'm at least consistent in my views here...

By the way, I was glad to see your reference to A Measure of Media Bias recently.

But then, most people are equally hypocritical and willfully ignorant in that realm as well.

Re:Okay, now it's official (slightly off-topic)

[dgatwood]

Actually, it's pretty easy to say those two things consecutively. One has to do with using copyright to protect profits versus people taking copyrighted material for personal use, while the other has to do with using copyright to protect people's right to personal use against a company taking the source code, changing it in non-public ways, and selling it for a profit. A lot of people see those as being very different arguments. In fact, they are basically diametrically opposite uses of copyright.

In fact, one might reasonably argue that copyright law should be altered to always allow personal use, in which case using copyright to protect against GPL infringement would be covered, while the RIAA suing their customers wouldn't. More to the point, almost all "fair use" falls into the category of "personal use", and most "personal use" has historically fallen under "fair use". The Audio Home Recording Act essentially set that as the standard when it came to infringement, so it isn't really as unreasonable as it sounds.

As for myself, I could go either way on the issue of personal use. However, I don't think that's what the RIAA suits are really about. I think that in those suits, copyright is essentially being used as a sledgehammer to stifle potential competition. By painting P2P in such a negative light, they reduce the effectiveness of P2P technology and the internet as a whole at allowing unsigned artists to be heard---something that the recording industry desperately wants to avoid, as it significantly weakens the relevance of their role as gatekeeper....

Sometimes coins have more than just two sides.

Re:Okay, now it's official (slightly off-topic)

[ReelOddeeo]

Now that people are using copyright law to protect ownership of GPL source code

Copyright has always been the only way to protect the ownership of GPL code. This is not new.


people can no longer in the next breath defend copyright infringement on P2P networks.

Why not? Sure I can defend it. Just watch me. I won't go into detail. I'm sure plenty of others will.

Re:Okay, now it's official (slightly off-topic)

[nojomofo]

What use is there for novels other than "personal use"? Most copyrighted material is intended solely for "personal use". Why does it make sense for copyright not to be valid for "personal use"? Doesn't that circumvent the entire purpose of copyright, if I can copy anything I want to just because I'm going to use it? And my friend, because he's going to use it. And then his friend, because that's personal use, too....

Re:Okay, now it's official (slightly off-topic)

[bonch]

Actually, it's pretty easy to say those two things consecutively. One has to do with using copyright to protect profits versus people taking copyrighted material for personal use, while the other has to do with using copyright to protect people's right to personal use against a company taking the source code, changing it in non-public ways, and selling it for a profit. A lot of people see those as being very different arguments. In fact, they are basically diametrically opposite uses of copyright.

How is using someone's GPL code not "taking copyrighted material for personal use"? In either case, infringement of a copyright usage license is occuring. The double-standard occurs when someone is opposed to only one of these situations but supports the other. If you're going to use copyright to defend your GPL code, then you really have little choice but to respect the use of copyright to defend media content as well. Otherwise, you're only respecting copyright half of the time which doesn't say much for the integrity and legality of the GPL. The GPL is dependent on copyright to exist.

Re:Okay, now it's official (slightly off-topic)

[jericho4.0]

Simple. If I print up a book to give to a friend, that's personal use. If I print up 1000 novels to sell, that's not.

Re:Okay, now it's official (slightly off-topic)

[nojomofo]

So would be an attempt to create a legal loophole for P2P? Pretty thinly veiled.

Re:Okay, now it's official (slightly off-topic)

[jericho4.0]

Oh, well. I live in Canada, where P2P is legal, and the stores still sell music.

The OP's argument, that because the GPL rests on copyright law, the music industry's use of copyright law is right, is absurd. Copyright law was made to curtail the rights of publishers, and protect the rights of consumers. Now that we are all publishers and consumers, it can change to fit the new model. The fact remains that re-publishing for profit is different than sharing, even if said 'sharing' can amount to thousands of copies. Printing presses, phonograms, VCR's, and file sharing all threatend the established industry, and all resulted in larger markets for the content in question.

Re:Okay, now it's official (slightly off-topic)

[shaitand]

"If you're going to use copyright to defend your GPL code, then you really have little choice but to respect the use of copyright to defend media content as well"

Absolutely. Of course we would all be better off if copyright granted no rights and took no rights away. Rather if it were reduced to requiring that the anything distributed for profit have a copy sent to the library of congress FIRST and be made publically available by the library for period of 50yrs, 5yrs after submission.

This would mostly eliminate the need for the GPL.

And of course there are software licenses that attempt to regulate fair use and require restrictions by license that copyright does not give the copyright holder the privelage to restrict. Supporting the GPL (which gives rights with conditions, rather than attempting to restrict rights you have without any license) does not imply ANY need to support those.

Re:Okay, now it's official (slightly off-topic)

[llefler]

Oh, well. I live in Canada, where P2P is legal, and the stores still sell music.

Good grief. P2P is legal in the US as well. What is NOT legal is distributing the work of someone else without their permission. You can P2P linux distros and WoW updates all day long if it suits you.

And I think you have it backwards. Copyright law was created to GIVE rights to publishers. It's purpose is to encourage innovation by allowing the creator to control the work for a period of time.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

people can no longer in the next breath defend copyright infringement on P2P networks.

Now what's it going to take to make people realize that you're bound to run across many different viewpoints, and that they don't form a collective just because they happen to be a different viewpoint than yours. Copyright infringement is bad no matter who's copyright it is. Just because the RIAA/MPAA are evil, doesn't make it okay to steal the works of the artists they represent. It does justify not buying or stealing them though.

Re:Okay, now it's official (slightly off-topic)

[jericho4.0]

No, I meant p2p sharing of copyrighted music files. Canadians pay a tax on all writable media that goes to the publishers. Seems simple really...

Re:Okay, now it's official (slightly off-topic)

[Curtman]

Oh, well. I live in Canada, where P2P is legal, and the stores still sell music.

Of course P2P is legal. Stealing copyrighted works is not. We are still required to enforce copyright law. The U.S. will attack us if we don't.

You are probably referring to the case where CIRA tried to force the ISPs to divulge information about its subscribers. It's entirely a different issue for whether it is legal for people to steal copyrighted works. Remember the quote from the judge that there was little difference between P2P and libraries who put photocopiers in the lobby? Note the judge didn't say anything about people who photocopy an entire book to save a few bucks. He was talking about legality of P2P in general. As in the people who write eMule, aren't any more responsible for theft than Xerox is, and the library isn't any more responsible than the ISPs are. In both cases, it's still illegal though.

Re:Okay, now it's official (slightly off-topic)

[jericho4.0]

Canadian Copyright Act, Section 80;

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of (a) a musical work embodied in a sound recording, (b) a performer's performance of a musical work embodied in a sound recording, or(br> (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.

So, any copying I do, for my own personal use, is ok. This includes downloading music. This seemingly does not include uploading music. See here for more.

The fact that ISP can't get subscriber information from ISP's for file sharers might not make it legal, but it sure does make it easy to get away with.

Re:Okay, now it's official (slightly off-topic)

[GooberToo]

100% incorrect!!!

If you print up a paragraph or maybe even a whole chapter, THAT'S personal use. If you print up the whole book or even thousands of copies, that's not!

Re:Okay, now it's official (slightly off-topic)

[Curtman]

So, any copying I do, for my own personal use, is ok.

How did you get that recording? Was the person who gave it to you allowed to do so?

You still need to have a license for the recording before you copied it.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

80. (1) Subject to subsection (2)

You also forgot about subsection (2) which says:

• (2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):
• (a) selling or renting out, or by way of trade exposing or offering for sale or rental;
• (b) distributing, whether or not for the purpose of trade;
• (c) communicating to the public by telecommunication; or
• (d) performing, or causing to be performed, in public.

You don't think that sharing your music via P2P is exactly what 80.2.c is? "communicating to the public by telecommunication"

Re:Okay, now it's official (slightly off-topic)

[jericho4.0]

Correct. Sharing is not ok. Downloading is.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

No, personal use is personal use and quantity is completely irrelevant.

What you were apparantly thinking of was non-personal use which is fair use when you only copy a small portion.

-

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>Of course P2P is legal. Stealing copyrighted
>works is not.

Actually, stealing is illegal, period. What you steal is irellevant, it is illegal to steal non copyrighted work as well. It is illegal to steal anything that can't even have copyright too.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>How did you get that recording? Was the person
>who gave it to you allowed to do so?

Ehh, are we talking about someone giving away something or about someone copyring something? Quite different situations and trivial to see the difference. Lets cover both to be on the safe side.

If someone gives away something, copyright will often not apply. Usually the right do distribute work with copyright is a right that, although belonging to the copyright holder, is in most countries copyright laws consumed after the first sale (or distribution). In US for example, this goes under the "first sale doctrine" I believe. After that, anyone is free to give away, sell or whatever the copy of the work freely without the need of any permision from the copyright holder. Some exceptions might exist in regard to renting the work. Perhaps other exceptions exist as well.

In this case I believe we were talking about COPYING though, not giving away something. Here there are two different things to look at. The one making the work available to the public and the one making a copy of it. None, one or both of those works might be a copyright infringement. I would say that in most countries, the one making it available, the uploader, is commiting a copyright infringement. However, the one doing the copy, that is the downloader is in many countries not doing something illegal since the copy is for private or personal use (assuming it is and it is not for comercial use for example). That is then NOT an infringement. Many countries that allow such a copying, that is, has a restriction on the exculsive right for the copyright holder to make copies, often have some sort of leavy on for example blank CDs to comensate for such legal copying. I believe that is the case in Canada although I am not aware of the details since I am not Canadian myself.

>You still need to have a license for the
>recording before you copied it.

You mean a license to make copies? Again, in the case of Canada, that is not needed for copying for personal/private use (according to my understanding). Can't see any other need for licenses either so it is really an irellevant point.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

You mean a license to make copies? Again, in the case of Canada, that is not needed for copying for personal/private use (according to my understanding)

No. A license to have it in the first place. If you are allowed to copy it after that isn't the issue. When you buy a CD at the store, you buy a license. It's fine to make as many copies for personal use of anything you have a license for.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>No. A license to have it in the first place.

Why on earth would you need a license to HAVE it? And what do that have to do with copyright? Possession is not an exclusive right of the copyright holder. Possession, just as use is not regulated by copyright. So you don't need a licnese to have it any more than you need a license to have a book, a toaster or a chewing gum.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

Was the person who gave it to you allowed to do so?

We don't know, and we don't care. We don't even know what country he is in, much less whether he has permission to ditribute the file or if he even needs any permission to distribute the file.

*If* the uploader is doing something illegal under his law then *he* is obviously guilty of that.

You still need to have a license for the recording before you copied it.

No. Did you read the law he cited? Don't guess what the law says. Don't guess what is or should be considered infringement. And most importantly do not believe propaganda about what the law says and how copyright operates and about what is or is not infringment. There is a lot of incorrect "common knowledge" about how copyright operates and what is and is not infringment. The only thing that matters is what the law actually says. He quoted the text of the law. The law says that the downloader needs no licence at all to create that copy. The law says the downloader is not commiting infringnment.

A downloader has no way of knowing whether an uploader is commiting infringment or not, nor does he care. The downloader is not infringing and he does not need any licence.

US and Canadian copyright law are mostly the same, though on this exact point US law may differ. On this exact point US law may be severly flawed. But we're not talking about US law, and we are not talking about what the law should be. We are talking about the existing state of Canadian law.

As a side note, when you walk into a store and buy a book or CD or whatever you do not receive any licence at all. When you buy a book or CD or whatever you do not need any licence at all. If you think you do then you need to throw out everything you think you know about copyright law and start from scratch. Infringment is certainly infringment, but the law does not operate the way you've been taught.

-

Re:Okay, now it's official (slightly off-topic)

[Alsee]

A license to have it in the first place.

There is no such think as a "licence to have". Legally there is no such thing.

When you buy a CD at the store, you buy a license.

You have been taught an incorrect model of copyright. That is not how copyright works. That is not what the law says. You do not receive any licence when you buy a CD. You do not need any licence when you buy a CD.

If you want to debate copyright isssues you really need to throw out everything you think you know and learn what the law actually says from scratch. I'm no lawyer, but I have studied the subject and I have directly studied the text of US copyright law. Common knowledge on copyright is often wrong and the RIAA and others deliberately promote a VERY misleading image of the law. The law is the law and infringment is infringment, but it doesn't operate in the manner you were taught.

-

Re:Okay, now it's official (slightly off-topic)

[Alsee]

Any time you talk about "use" you are at best making subject ambiguous and confusing, and at worst getting it completely wrong.

Copyright does not restrict "use". The copyright holder has no rights over "use".

Copyright restricts the creation of new copies (including derivative copies), the distribution of new copies, and public display/performance.

Anything not on that list is not restricted by copyright. The copyright holder has no rights over anything not on that list. The copyright holder cannot "licence" anything on that list.

Reading a book, playing a song, running a program, all of those things are unrestricted. You need no licence at all to "use".

When you buy a CD it comes with no licence at all because you need no licence at all. You need no licence unless you are creating/distributing new copies or trying to play it for the public.

-

Re:Okay, now it's official (slightly off-topic)

[Curtman]

"Why on earth would you need a license to HAVE it?"

For the same reason that you need a license with software. You don't have the right to someone else's copyrighted works unless you have a license to use them.

"So you don't need a licnese to have it any more than you need a license to have a book, a toaster or a chewing gum."

Toasters and chewing gum have nothing to do with copyright. Books do.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

It doesn't matter. If someone doesn't have the right to give you a recording, you don't have the right to it. You can steal satellite signals as well, but nothing gives you a right to the programming until you pay for it.

"Did you read the law he cited?"

Yes I did. Did you? He quoted the first half of it. The very first part was "Subject to subsection (2)", which he completely omitted. Go look for yourself

Re:Okay, now it's official (slightly off-topic)

[Curtman]

There is no such think as a "licence to have". Legally there is no such thing.

Yes there is. Thats what copyright is. If I write a song or a computer program, I have copyright of it. You don't, so you don't have any rights to it unless I give them to you.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>For the same reason that you need a license with
>software.

You don't!

>You don't have the right to someone else's
>copyrighted works unless you have a license to
>use them.

What makes you think that? (And what do you mean by "the right to someone else's copyrighted work?). Could you for example point to a copyright law that says you need a license to USE a work you don't hold the copyright to? Could you point to a copyright law that gives USE as an exclusive right to the copyright holder? I would assume no. If you read the copyright laws (of your country or any other country), you will see that copyright regulate, and give as exclusive rights to the copyright holder only a specific few things. They include copying, distribution,, public performance and similar related things. That is it!!!! Nothing about use.

Your "right to some else's work" simply doesn't work out, it seems to imply you mean that you have NO right whatsoeever which is simply not true. You can do anything you want with them except the few things that the copyright holder has the exclusive right to do (and even then, there are exceptions so that you can do some of it under some circumstances anyway).

>Toasters and chewing gum have nothing to do with
>copyright. Books do.

But copyright have nothing to do with USE. If you own something, regardless of if there is copyright or not, as said above, you can do pretty much anything (with exception of for example copying).

You might want to try looking at the actual copyrigth laws to find out more. That will also most likely mean you will find that (just to prevent you from arguing about it in relation to computer software) that you ARE allowed to make such copies of it that is needed for using it, like copying it to the computers RAM memory, or installing it to the hard disc to run from there and so on.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

Yes, subject to section (2). And nothing in section (2) applies to the act in question, and as the law indicates the act in question is the downloader's act.

It says:
Subsection (1) does not apply if the act described in that subsection
[the act described in subsection (1) in this case is saving a copy on his own harddrive for his own use]
is done for the purpose of doing any of the following...
a) selling or renting out, or by way of trade exposing or offering for sale or rental;
[Nope, he's not selling or renting or trading or exposing or offering it]
(b) distributing, whether or not for the purpose of trade;
[Nope, he's not distributing it]
(c) communicating to the public by telecommunication; or
[Nope, he's not communicating it to the public]
(d) performing, or causing to be performed, in public.
[Nope, he's not making a public performance]

As I said, the person distributing the file may or may not be commiting infringment. As far as the downloader knows the person sending the file may be the copyright holder himself, or may be authorized by the copyright holder, or may for whatever reason not be infringing, or the work in question may not be under copyright at all.

The downloader has no way of knowing if the sender is infringing, nor does he care. Nothing in subsection (2) applies to the downloader's acts. The downloader is not infringing.

-

Re:Okay, now it's official (slightly off-topic)

[Curtman]

"You don't!"

Yes.. You do.

"Could you for example point to a copyright law that says you need a license to USE a work you don't hold the copyright to"

Sure:

• 15. (1) Subject to subsection (2), a performer has a copyright in the performer's performance, consisting of the
• sole right to do the following in relation to the performer's performance or any substantial part thereof:

• (b) if it is fixed,
• (i) to reproduce any fixation that was made without the performer's authorization

You have the right to copy anything that you have acquired legally. If the copyright owner didn't authorize you to have his work, you don't have any rights to it.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

First a note: While US copyright law and Canadian copyright law are substantially equivalent, I am have only directly researched the text of US law and can only rapidly cite the text of US law. So hopefully you will not object if I proceed on a US-basis.

>There is no such think as a "licence to have". Legally there is no such thing.
Yes there is.

I'll tell you what. You quote a law saying that and then I'll gladly admit I'm a moron and asshole who doesn't know what he's talking about.

I know for a fact that you cannot do that. I've read the text of US copyright law. I understand US copyright law. I know for a fact that there is no such thing as a "right to have" in the law. I know for a fact that you do not know what you're talking about.

But heay, all you have to do is actually post the text of the law and prove me wrong.

Of course I expect you to actually attempt to read or cite the text of law. You just "know" what copyright means. So how about *I* cite the actual law to you instead...

Thats what copyright is.

What copyright *is*:
TITLE 17 CHAPTER 1 Sec. 106. - Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1)to reproduce the copyrighted work in copies or phonorecords;
(2)to prepare derivative works based upon the copyrighted work;
(3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6)in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

Anything not on that list IS NOT RESTRICTED BY COPYRIGHT.

To put it into plain english those six rights can really be summarized as three different rights. Copyright *is* (1) the exclusive right to create new copies (including derivatives) and (2) the exclusive right to distribute new copies, and (3) the exclusive right to any sort of public display.

Those rights are subject to all sorts of limitations and exceptions, but that isn't too relevant right now because the limitations and exceptions only serve to decrease the rights granted to the copyright holder.

If I write a song or a computer program, I have copyright of it.

Well first of all aou are going to be the physical owner of that first particular copy. Just to get that out of the way.

You own the copyright on it. That means you own the bundle of three exclusive rights for that work. Subject to various limitations and exceptions, you own (1) the right to create new copies of it, you own (2) the right distribute new copies of it and (3) you own the right to publicly display/perform it.

Period. End of copyright grant, end of rights. If it's not listed then it's not yours.

The effect of that is that people generally aren't going to be able to get their hands on a copy unless you yourself choose to engage in activities (1) (2) and/or (3), or if you choose to licence other people to engage in (1) (2) and/or (3). There is no such thing as a licence to own a book. Individual copies are owned based on the physical ownership of the media. There is no such think as a licence to read a book or play music, reading and playing are unrestricted. Only the three listed rights can be licenced.

You can choose to create a second copy of your book. If you do

Re:Okay, now it's official (slightly off-topic)

[Curtman]

(b) distributing, whether or not for the purpose of trade;

• [Nope, he's not distributing it]

(c) communicating to the public by telecommunication; or

• [Nope, he's not communicating it to the public]

There it is.. The person you are receiving the copyrighted work from, is not authorized to give it to you. If you obtain the copyrighted work with the authorization of the copyright holder, then you are permitted to copy it for personal use. Whether or not you are allowed to copy something after you have infringed on the copyright doesn't make any difference. If you acquire an illegitimate copy, you have no rights to it.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

So hopefully you will not object if I proceed on a US-basis.

Actually, I do.. We're talking about a ruling in Canada which stated copyright holders do not have the authority to demand from ISPs the identification of its subscribers. The misconception is that this ruling somehow gives people the right to infringe on other peoples copyrights.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

There it is.. The person you are receiving the copyrighted work from, is not authorized to give it to you.

If so then he's commiting infringment. However this section covers the act of the downloader making a copy. Every sentence in the section refers to the downloader. There is not a single sentence saying anything about the uploader or anyone else. That is what you're misreading.

In fact the section reads exactly the same if he's making the copy off of his own CD without authorization. Noninfringing

Maybe it will be easier to read if we trim it down as follows:

the act of reproducing [] a musical work [] onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work [unless it] is done for the purpose of [] (a)selling or renting out, (b)distributing, (c)communicating to the public, (d)performing

And further trim it down as follows:

reproducing [] for the private use of the person who makes the copy does not constitute an infringement [unless it] is done for the purpose of [] selling or distributing.

The downloader is reproducing. It is for the downloader's private use. He is not committing infringment because he is not planning to sell or distribute it. The law does not care if he is copying it off of his own CD, or from an authorized uploader on the net, or from an unauthorized uploader on the net.

If you obtain the copyrighted work with the authorization of the copyright holder, then you are permitted to copy it for personal use.

The law says absolutely nothing about receiving it with authorization. The law says nothing about the source at all.

-

Re:Okay, now it's official (slightly off-topic)

[Curtman]

If so then he's commiting infringment.

Yes. Now you've got it. If he/she isn't allowed to give it to you, you aren't allowed to have it.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

Huh????

Yes, what you just quoted says that the copyright holder has the sole right to make new copies!!! Doh! That is what I have been saying all the time. It ONLY copvers the act of making new copies, nothing else. Of course, there are a few other things the copyright holder gets to sole right to, as I have said, it includes distributing such copies, making a public performance and so on.

What I am talking about is using it. For exmaple, reading a book, listening to a music CD or running a computer program. That is NOT something the copyright holder has the sole right to do, yet you continue to claim so (quoting you can't copying, that I know and have been stating).

Similary, just possessing or having a copy of a work is again NOT something the copyright holde has the sole right to (yet you claimed so typing before:

>No. A license to have it in the first place.

Again, that is NOT something copyright laws requires yo uto have (and no quoting that you can't copy something is completely irellevant since we are discussing having, owning, possessing,reading,running,whatever else.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

That is what I have been saying all the time.

No, you have been saying that you have the right to copy anything that has ever been composed. You have the right to copy anything that you have acquired legally. If you acquire the work from someone who doesn't have authority to give it to you, you can't claim any right to copy it. You shouldn't have it to begin with, you had to infringe on the copyright to get it.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

Please point out were I have said any of those things? I have been talking about USING things, or simply HAVING things, since that is what you wrote.

Lets look at each post (in summary). My initial post was about "being allowed to give" and you claiming that person needed a license. I asked if it was a license to copy (since in some countries even copying is in some cases NOT an infringement even without a permission).

You reply that it is about a license to have it: "No. A license to have it in the first place." You further says: "If you are allowed to copy it after that isn't the issue."

So clearly we (including me) are not talking about copying. So I have no idea were you have found I said anything about copying as you imply in your previous message. Please tell me.

Moving on it the posts, I point out you don't need to have a license to "have" something and ask why.

You reply for the same reason needing one for software "For the same reason that you need a license with software.". Again, I point out there is no such need to have it (look I am never talking about copying, that was covered in my very first post and you never replied to that part).

I reply stating that use has basically nothing to do with copyright. I ask you to point out were USE is an exclusive right to copyright holder. I state you can do anything with the copy you have except for the things exclusive to the copyright holder, and even mention making copies IS such a thing:

"But copyright have nothing to do with USE. If you own something, regardless of if there is copyright or not, as said above, you can do pretty much anything (with exception of for example copying)."

How can you from such things claim to me:
"No, you have been saying that you have the right to copy anything that has ever been composed."?????

You further goes on to quote the copyright law about COPYING. Again, I answer that it is not about copying, but about using and having (Please go back and read your first posts to me). I say to you, that indeed, the copyright holder has the exclusive right to make copies (see paragraph 8 above which is a quote of one of my posts).

So, can you point out were you get the idea that:

>No, you have been saying that you have the right
>to copy anything that has ever been composed. You
>have the right to copy anything that you have
>acquired legally. If you acquire the work from
>someone who doesn't have authority to give it to
>you, you can't claim any right to copy it. You
>shouldn't have it to begin with, you had to
>infringe on the copyright to get it.

And can we return to the original issue, that you claimed that one need a permission or license to even have or use a copy of a copyrighted work?

Re:Okay, now it's official (slightly off-topic)

[Curtman]

I have been talking about USING things, or simply HAVING things, since that is what you wrote.

Yes. You cannot *have* the work if the copyright had to be infringed to get it.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

Why have you not responded to the lies you posted regarding what I said? You feel it is OK to spit out lies and then simply ignore it?

>Yes. You cannot *have* the work if the copyright
>had to be infringed to get it.

Of course you can, possession is not infringement. It is the actual acts of copying, distribution and such that is infringement. Simply possessing something is not infringement. Even USING a copy that was created in an infringing way, is in itself not a copyright infringement. Lets say someone copy a book and sells it to me (that would be copyright infringement in most countries). Me reading that book is not a copyright infringement. I am not doing anything illegal reading it.

So having, poessing and using a copy of a work has no relation to the copyright at all. There is no requirement for a permision ot have, posess or use them either. That is why I pointed that out in your initial post since you indicated it is needed.

If you want to discuss further, please point out any relevant law to copyright that regulate possession, use, or having it as a right the copyright holder have and control and that requires you to have a prmision for that. Otherwise you are just puting out ideas, thoughts, dreams or believes that you might have that are not true.

As pointed out (and even quoted by someone else just below), copyright deasl with copying, distribution and public performance/display. That is it. feel free to discuss those since those action alone are copyright infringement. Any other activity you do (for example reading, listening), really has nothing to do with copyright. Alos note that the distribution right typically eqpires after the first distribution, so that even redistriubtion is not a copyright issue after that.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

Why have you not responded to the lies you posted regarding what I said?

Because there are no lies. You are just being foolish. You seem to have a problem with the words "license", and "use". Other than semantics, you don't even have an argument at all.

• Copyright material
  
  Intellectual Property law in Canada permits the limited use of copyright material in two specific circumstances. The first is "Fair Use"; that is, for private study or research and for criticism, review or summary if the source and the author is identified. The second is under "Implied License"; that is, the copyright owner invites others to make use of the work in a certain way and thus a consent or license to use the work is implied. For example, by posting a copyright work to a server, there is/may be an implied license authorizing whatever reproduction is necessary for accessing and viewing.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>Because there are no lies. You are just being
>foolish.

You wrote (among other things):

"No, you have been saying that you have the right to copy anything that has ever been composed."

When in fact as I showed, I have been writing the opposite.

>You seem to have a problem with the words
>"license", and "use". Other than semantics, you
>don't even have an argument at all.

Use to me means reading a book, listeing to a CD, looking at a film, running a computer program. No idea what else you seem to have thought I mean by it since I have written that many times. What do YOU mean?

What I am saying is that USE doesn't require the permision of the copyright holder since it is not an exclusive right of the copyright holder. You state the contrary so I have asked you to quote or point to the copyright law supporting you view. So far the only thing you have found was about copying which is different and there we agree. So please find anything about using in copyright law.

What you quoted now, is first of all not the law. Second, the "fair use" and license (as in any countries law), is about things that would OTHERWISE be copyright infringement. It is cases when an act, such as copying, or distribution would have been a copyright infringement but in some cases is not. The apply to the original exclusinve rights that is copying, distribution and making it available to the public.

For example, one type of fair use is to quote something in a context. You pick out part of a text and use it in your own text to make some point. That would of course be copyright infringement since you copy and then distribute and make it availavle to others. However, the Fair Use would say that it is OK under certain circumstances (that the quote is a part of the text for example). That has nothing to do with using in the sense people use normally.

The very short snipet you quoted, talks only about such exceptions to infringing acitivites, copying and making it available to the public that would normally not be allowed but are exceptions. It doesn't talk about normal use at all, nor does it explain copyright and exclusive rights of the copyright holder either. Try finding the full copyright law, try to understand how it works and then we can talk again.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

What I am saying is that USE doesn't require the permision of the copyright holder since it is not an exclusive right of the copyright holder

It sure does, if in order to use it, you have to make copies.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

>If so then he's commiting infringment.

Yes. Now you've got it.

If the uploader is infringing then the uploader is infringing.

If he/she isn't allowed to give it to you, you aren't allowed to have it.

No, YOU CAN'T JUST MAKE STUFF UP.

The law says:
reproducing [] for the private use of the person who makes the copy does not constitute an infringement [unless the downloader's act] is for the purpose of [] selling or distributing

Is that simple enough to understand? The act it mentions to is the downloader's act of making the copy. The act in subsection (1). This law says the downloader is not infringing. It makes absolutely no refference to the uploader.

The law was INTENTIONALLY written to make the downloader innocent even if the uploader is infringing. This is what the law is SUPPOSED to do. And I'll show you why. Ignore the next paragraph.

Ok, so life changes, changes lives... Of which many I am beginning to make. One of the first things is this computer PC gaming life style... Is it really worth it? I mean it is a great distraction, but it is unproductive. I could be learning how to play a flute or how to program (yuck!)... but no matter what, almost any activity would be adding skills/knowledge to my being. No matter how many times I win a skrimish in generals... I'm just not learning anything new and useful... So... I am thinking of picking up a few new hobbies. Maybe taking a class at MCC for Japanese, or maybe Sign Lang. I am going to be taking Tai Chi and Yoga Classes staring either this week or the next. Those are part of my new endevor to increase my body's health. I was also thinking about learning some basic wood working... or perhaps electrical type stuff... not too sure as of yet. Either way a slow dawning of a new realization is occuring (besides the fact that I can't spell :). We are dying one minute at a time... Good to the last drop... we are not beatiful and unique snowflakes... or maybe I just have a song stuck in my head :)

Guess what? I did not ask permission to copy that text. I did not obtain authorization to send it to Slashdot. Slashdot is not authorized to send it to you.

YOU DOWNLOADED IT. YOU CREATED A COPY OF IT ON YOUR COMPUTER SAVED IN YOUR HARDDRIVE CACHE.

If you are correct then you are guilty of infringment. If you are correct then the author of that text can sue YOU and obtain money.

I happen to know who the author is. I really really do not think he's going to sue me, and he's not going to sue Slashdot either. But hell, if you're right then maybe I'll ask him to sue you. You downloaded it, and if you're right then you own him money for infringing.

-

Re:Okay, now it's official (slightly off-topic)

[Curtman]

But hell, if you're right then maybe I'll ask him to sue you.

You could try. This isn't a P2P network though, which is what we are talking about. With P2P, you are sending copies as you are receiving them. That isn't happening here.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

Ok, I *think* we may be able to reach agreement now.

I hope we can agree that you are using a different argument now. I think you agree that you now have my friend's text without authorization, but that you have not infringed. I think you agree that sender infringment does not automatically make the receiver an infringer.

Your new argument is that you are infringing if "With P2P, you are sending copies as you are receiving them". We are now in half-agreement. To reach full agreement we need to clarify assumptions.

Your statement is not fully accurate because it *assumes* that anyone who downloads something does in fact go ahead and commit infringment with that file. Yes, I said all along if someone goes ahead and infringes then they will be an infringer.

However someone can use P2P and *not* send that particular file to anyone else. They can turn off sharing completely, or they could simply not include that new file in the files availible to be sent, they could download it it with no intent to redistribute that file and they can move it out of the shared files folder before it gets sent to anyone else. And in any of those cases getting a file on P2P is not infringment.

Under Canadia law receiving a file is fine, so long as you don't go ahead and infringe afterwards. You are now the legal owner of that copy. If the person who sent it to you infringed by doing so then *he* owes the copyright holder big fat damages for giving you that copy.

Whether it is P2P or anything else, receiving is legal. You only need to be careful what you send out. And on P2P you are responsible for checking anything that comes in before you send it out to anyone else.

-

Re:Okay, now it's official (slightly off-topic)

[Curtman]

Under Canadia law receiving a file is fine, so long as you don't go ahead and infringe afterwards.

We'll have to see what happens in the courts. Currently the ISPs aren't allowed to name their subscribers. Once that changes and ISPs are required to provide that information to the court, or they find a way to get people to give up their anonymity, the lawsuits will come fast and furious. Until then we can only speculate. I don't believe that you are allowed to have files that were made as a result of infringement, any more than you would legally be allowed to have the Microsoft source code that leaked a year or two ago. I'd almost like to turn in a few of the dishonest people I know to have copies just to see what happens.

Re:Okay, now it's official (slightly off-topic)

[GooberToo]

Again, you would be 100% wrong. I am not confused. Making mass copies to provide to your friend, or even a single copy, is not personal use. Period!

Re:Okay, now it's official (slightly off-topic)

[GooberToo]

Actually, quantity is completely relevant according to law. Each violation adds up. If you made a copy for a "friend", it so NOT personal use. Period! How stupid are you?

Personal use is personal use, however, the example given has absolutely zero to do with personal use, which brings us full circle, wonder what crack pipe you're smoking from. Period.

Re:Okay, now it's official (slightly off-topic)

[GooberToo]

Ahh. I see your confusion. Go back and read the original message that I'm replying to. The author implied that copying a book for a fried qualified as personal use. It most certainly does not. Copying a paragraph or so, for a friend, does fall under fair use.

Making 1000-copies for friend(s), most certainly does not fall under fair use. And absolutely yes, quantity determines the number of damages that you will be smacked with. So yes, quantity of violations absolutely does matter!

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>It sure does, if in order to use it, you have to
>make copies.

Of course, who have claimed otherwise. Again, that was not your initial point though, you calimed just HAVING it required permision and that ANY use also did.

Oordinary use does normally not rquire any copying however. And since you appearantly don't even read any copyright laws despite liking to claim what they say, yes, they do allow making copies of for example computer programs needed to run it without permision, that is an exception to the copyright holders right to copy. Such copying does not need permision. Just like copies for private use doesn't (in Canada and many other countries). Again, this is something I also explained before.

Now, if you have something NEW to say or at least want to back up what you have allready claimed (that simply having or reading a book or listening to a CD) then feel free to do so, otherwise I think there is no point talking more, especially since you appearantly have not even rad a copyright law, or even understood it.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

Again, that was not your initial point though, you calimed just HAVING it required permision and that ANY use also did.

My point is that, if you are the recipient of an infinging copy, whether or not you can make copies of it is irrelevant.

The law, which you say I have not read, but have quoted several times says:

• 42. (1) Every person who knowingly
• (2) Every person who knowingly
• (a) makes or possesses any plate that is specifically designed or adapted for the purpose of making infringing copies of any work or other subject-matter in which copyright subsists
• is guilty of an offence and liable
• (c) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
• (d) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
• (3) The court before which any proceedings under this section are taken may, on conviction, order that all copies of the work or other subject-matter that appear to it to be infringing copies, or all plates in the possession of the offender predominantly used for making infringing copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

That can obviously be interpreted a number of ways, but in my view, and the view of others it means if you are in possession of an MP3 rip of a CD, or a DivX reencode of a DVD that somebody made in order to distribute on the internet, then you are guilty of a crime.

Re:Okay, now it's official (slightly off-topic)

[Alsee]

Normally I'd rip your head off for calling me wrong and stupid and smoking crack, but for some bizzare reason I'm in a generous mood and I find your three consecutive replies (LOL) screaming over an imaginary offense to be more comical than anything else.

You're screaming at me for something I did not say. This isn't an arguement over law. You miswrote something and you misinterpreted my correction.

If you forget about anything anyone else said and carefully read what you actually wrote and only what you actually wrote, you might realize it does not say what you had intended to say. It does not say what you thought you said.

The first statement of my reply was correct, it pointed out that the text you actually wrote was not correct.

The second statement of my reply was also correct, it pretty much says what you were trying to say.

-

Re:Okay, now it's official (slightly off-topic)

[GooberToo]

LOL. Very sad in deed.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>My point is that, if you are the recipient of an
>infinging copy, whether or not you can make
>copies of it is irrelevant.

This is a point you have introduced later in the discussion, initially, and what replied to, was your general claim that to simply HAVE or USE (in any sense that is not en exclusive right of the copyright holder), required permision. This was regardless of if the copy was infringing or not to start with. You claimed that one simply needed a license for software (period) in one of your initial posts.

>That can obviously be interpreted a number of
>ways, but in my view, and the view of others it
>means if you are in possession of an MP3 rip of
>a CD, or a DivX reencode of a DVD that somebody
>made in order to distribute on the internet,
>then you are guilty of a crime.

Appearantly canadian courts are not in agreement since coping, including downloading for private use is legal. Hence such a copy is NOT an infringing copy since the act of such copying, for private use, is in itself not an infringing act.

Re:Okay, now it's official (slightly off-topic)

[Curtman]

Appearantly canadian courts are not in agreement since coping, including downloading for private use is legal.

No it is not.

the act of such copying, for private use, is in itself not an infringing act.

You're an idiot. The source copy is the infringement. You don't have any rights to make copies of it, because you're not supposed to have it in the first place. That is what the law says. Beleive a fallacy if you want, just shut the fuck up about it.

Re:Okay, now it's official (slightly off-topic)

[Pofy]

>You're an idiot.

Whatever, if that is your best argument, fine.

> The source copy is the
>infringement.

The source is irellevant. Again, look at the law (Canadian in this case, both you and the others you replied to have allready given the link.

> You don't have any rights to make
>copies of it, because you're not supposed to
>have it in the first place.

This is irellevant, the law making it possible to make copies for private use does NOT put any requirements on the original.

> That is what the law
>says.

Were? Lets actually copy it again:

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer's performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.

So, were is there any requirement regarding the original???

Since you refered to subsection 2 in one of your replies, lets paste it as well and please point out what in that section apply since you claimed so when mentioning it:

(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public.

Again, nothing requires the original from which you make a copy to be legal. Actually it doesn't mention anything about the original at all.

Note that the paragraph talks about the purpose of the copy being made. As long as you don't intend to do any of the things listed, it is private use and ok to do. That means I can't make a copy and claim it to be for private use and then distribute it to someone.

> Beleive a fallacy if you want, just shut
>the fuck up about it.

If you feel bad language is a good way to argument, rethink. Something doesn't become more or less through just because like to use such language.

We still have the situation that you have claimed that POSSESSION (having), USING (as in reading, listening and anything else that does not explicity involves copying and distribution that is not allowed) requires permision while not ebing able to show proof of such a thing.

You claim that Canadian copyright law does not allow for making private copies thorugh downloading, yet can't show were in its law it makes such a thing not allowed (and we are talking about the downloading here, not the uploading or making it available, that I think we can agree on is not legal and those who do so is commiting copyright infringement).

Re:Okay, now it's official (slightly off-topic)

[Curtman]

The source is irellevant.

No its not. The key phrase is "makes or possesses".

Re:Suing for damages? Inappropriate, IMHO

[kurzweilfreak]

It's not a lost sale if people don't hear it. It is a lost sale when they download it and do hear it, regardless of the bullshit "I wouldn't have bought it anyway" argument. You might not have bought it, but you still listened to it anyway.

Re:*applause*

[Anonymous Coward]

We've covered this! Were you not paying attention?

We like freedom of information. The GPL improves it, traditional copyright restricts it.

There are lots of positions the /. groupmind takes that are contradictory, but this isn't one of them. Start scouring the board for a better one.

Re:Suing for damages? Inappropriate, IMHO

[jedidiah]

Actually in this case "deprivation of property" was present. This wasn't a simple case of some kid sharing his copy of of the black album. SAE was trying to assert ownership over code that someone else had written and then CHARGE THEM THOUSANDS OF DOLLARS FOR IT.

This bears much more resemblance to the SCO case than to any swap kiddie.

Re:*applause*

[bonch]

You don't see a contradiction here?

1.) Copyright infringement on P2P networks is okay. It's not theft.
2.) Copyright infringement of GPL source code is not okay. It's theft.

Just repeating that the GPL improves freedom isn't really saying anything other than RMS propaganda. There are real issues here revolving around the usage restrictions of intellectual property. If the discussion is to ever go anywhere, there needs to be a rational starting point.

GPL also wasn't the issue - but proved a good tool

[Ungrounded Lightning]

But remember, the GPL itself is not specifically "tested", per se, because GPL software developers assert them rights granted to them via copyright on an individual basis.

Also: As I read it GPL wasn't strictly at issue here. The core issue was whether a standards organization can claim IP rights over the standard itself when that standard is embodied as code. Once that issue was clearly articulated both parties seemed to take the enforcability of the terms of the GPL as a given.

What is important here is that it was the terms of the GPL that allwed Drew Technologies to haul the SAE into court, claim damages from them, and get them to settle WITH a payment of damages.

The SAE had posted Drew Tech's code, claiming they owned the copyright because it was derivitive of the standard and demanding a "subscription fee" from both Drew Tech and from all other users of Drew Tech's GPLed code.

The GPL violation was the hook Drew Tech chose to file a takedown demand, drag the SAE into court, and demand damages for violation of THEIR copyrights - like any other GPL software provider. B-)

Even in the absense of an actual decision, this case shows that licensing your code under the GPL doesn't jepoardize your ability to haul offenders into court and claim (and get settlements for) damages for violating your license terms.

Re:GPL also wasn't the issue - but proved a good t

[Ungrounded Lightning]

[...] this case shows that licensing your code under the GPL doesn't jepoardize your ability to haul offenders into court and claim (and get settlements for) damages for violating your license terms.

In fact it may enhance this ability, by lowering the threshod for claiming damages.

I thought....

[Audacious]

I thought that one of the important things to come out of the case was this:

The doctrine is now enshrined in 17 U.S.C. 102(b). The relevant section says:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

A lot of people think that their ideas, procedures, processes, etc... are (or can be) protected by copyright. The answer here is - no. They can not be protected by copyright. These are protected by patents.

Tangibles => copyrights
Intanigbles => patents

(I don't know about anyone else, but I do get a lot of questions on this when friends/relatives/and other stranger persons ask me about copyrights. And no, IANAL! I just like to read about the law. [Surprised my own lawyer by how much I knew about the law. :-) ])

Re:I thought....

[Minna Kirai]

A lot of people think that their ideas, procedures, processes, etc... are (or can be) protected by copyright. The answer here is - no

Wrong. It comes down to the definition of "idea". Prehaps you don't know what "idea" means- prehaps you don't know how all-ecompassingly generic it is:

1. 1. Something, such as a thought or conception, that potentially or actually exists in the mind as a product of mental activity.

Absolutely anything you could read off one page, repeat in your brain, and then write on another page fits that description. Depending on your memorization skills, any kind of intellectual property is covered by that, and much else besides.

A lot of people think that their ideas, procedures, processes, etc... are (or can be) protected by copyright. The answer here is - no

For a similar level of truth, I might say that "Killing animals is not murder". That isn't true in general, and might be right or wrong in any particular instance, depending on whether or not the animal is of the species homo sapiens, and if there are other extenuating circumstances (war, self-defense, state-sponsored execution, etc).

Not all ideas can necessarily be copyrighted, but SOME ideas can be (others can be patented or trademarked). Superman and Luke Skywalker are both copyrighted and trademarked, even though they are inarguably the products of mental action, or "ideas".

Tangibles => copyrights
Intanigbles => patents

Oversimplified so much that it's necessarily wrong. Many totally intangible things are copyrighted. I wonder if this is another case of you lacking a definition, this time of "intangible". (Hint: by definition, all software is intangible. If it were tangible, it would be hardware). Furthermore, pork futures are intangible too, and they're not patentable! (although they are ownable as simple property)

Re:I thought....

[Audacious]

Ok....

(Hint: by definition, all software is intangible. If it were tangible, it would be hardware)

Wrong. All software is tangible. It resides within a computer, floppy disk, hard drive, etc.... Therefore, your definition of intangible versus tangible is flawed. The ONLY reason you can copyright software is because it is, by extension, a form of writing and communication - which is why the Copyright Office opened this form of copyrighting at all. Well, big business had a lot do with it too but that was the underlying argument.

Superman and Luke Skywalker are both copyrighted and trademarked, even though they are inarguably the products of mental action, or "ideas".

Incorrect again! Damn! And here I thought you might be on to something. Superman is copyrighted as a comic book. However, Marvel has Superman also, BUT he isn't called Superman. And the reason he isn't called Superman is not because Superman is copyrighted. It's because he is a registered trademark and thus protected under the rules and regulations regarding trademarks. Look it up. As for Luke Skywalker. The name itself can not be copyrighted but it can (again) be trademarked for purposes of distinguishing it from other generic "Luke Skywalker" names (such as a person's name). Further, the books for both Superman and Luke Skywalker allow an extension of the copyright laws which deal with protecting specific instances of names. Thus, someone can not write (legally) about Luke Skywalker and his adventures except in the standard method of fair use. However, this doesn't amount to anything when you are talking about fans of the Star Wars saga because most fans don't really care. Which is why no one tries to do anything about fans. First, because they want fans, and second it gives the owners of the copyrights access to derivative works which they may be able to use to create monetary income. (ie: Hire the author if they like their writings.)

Prehaps you don't know what "idea" means- prehaps you don't know how all-ecompassingly generic it is:

And perhaps you don't know the difference between talking generally and talking specifically. This isn't legal class 101 - it's just a chat board and the quote was taken, literally from the article. Thus, if you have a problem with what he has said - maybe you should go discuss your differences with Mr. Eric Grimm himself. I am sure he would enjoy your saying he doesn't know what he is talking about.

And while we are on the subject of copyright and what is or is not protected I would like to draw your attention to BattleStar Glactica. This famed series originally starred Lorn Green and the entire basis of how everything worked in the series was done by none other than - George Lucas. George came up with the special effects and many of the other things which made the series a hit. Then George tried to sue. After all, these were his ideas, processes, and (just about) everything else. Know what? After a few years of listening to the case the judge threw the case out and told Mr. Lucas to "Get a life!" The judge went on to chastise Mr. Lucas because, in the judge's words "You don't own the universe Mr. Lucas." And here is where ideas met reality. Just as they did in this case. He couldn't own the ideas. Only the copyright's embodiment of the ideas and those had been bought and paid for by the TV studios who had hired him to do the special effects.

Later.

Re:I thought....

[Minna Kirai]

All software is tangible. It resides within a computer, floppy disk, hard drive, etc.... Therefore, your definition of intangible versus tangible is flawed.

Do you have ANY idea what "tangible" or "corporeal" means? Any at all?

All software is tangible.

Just wanted to repeat that again, because it's about the stupidest thing I've read in nearly 4 months. (This is the 2nd most stupid thing)

Incorrect again! Damn!

No, I was correct. Nothing you wrote refutes me, or even makes approximate sense. It's true that Superman and Luke Skywalker are covered by both trademarks and copyrights, but copyrights are by far the more important consideration. If Luke Skywalker was only trademarked and not copyrighted, then many comic-book authors would be happy to use that name inside their works without paying George Lucas.

Further, the books for both Superman and Luke Skywalker allow an extension of the copyright laws which deal with protecting specific instances of names.

Ok, that doesn't parse too well as an English sentence. But it appears to be an agreement with me, which makes your recent usage of "Incorrect again!" even less comprehensible.

. This isn't legal class 101 - it's just a chat board and the quote was taken, literally from the article.

No. It was a direct quote from USC copyright law, which you completely misinterpreted. And if you somehow thought that the text of an ancient, preexisting law somehow came "out of the case"... well, that suggests why nobody else bothered to reply to you.

Thus, if you have a problem with what he has said - maybe you should go discuss your differences with Mr. Eric Grimm himself.

Maybe if you practice coherent HTML formatting a little, you'll commit less accidental plagiarism.

And while we are on the subject of copyright and what is or is not protected I would like to draw your attention to BattleStar Glactica.

Maybe there's an interesting story behind that, but what you just wrote is too incoherent to allow me to make any guesses. WHY did Lucas decide to sue? What was his percieved grievance? You need to at least allude to details like that for an anecdote to be at all useful.

Re:I thought....

[Audacious]

Do you have ANY idea what "tangible" or "corporeal" means? Any at all?

Why yes I do Minna! Tangible is what I am and corporeal is what you are not. What you can't seem to get through your head is that even if left on a computer and never printed out a software program still resides as electrical information. It MUST RESIDE somewhere or else it can't be used by a computer to perform its task. Maybe you should take a few computer courses and learn what a software program is and is not. I know I have and I have since 1972. So from how you are writing your sentences I'd have to say I have known what tangible and corporeal has meant for a few more years than you have even been alive. So get over yourself.

Just wanted to repeat that again, because it's about the stupidest thing I've read in nearly 4 months. (This is the 2nd most stupid thing)


And you are THE DUMBEST PERSON presently on slashdot. There! Does that make you feel better? Like throwing a little slander around? Get a life Minna! Get a life!

No, I was correct. Nothing you wrote refutes me, or even makes approximate sense. It's true that Superman and Luke Skywalker are covered by both trademarks and copyrights, but copyrights are by far the more important consideration. If Luke Skywalker was only trademarked and not copyrighted, then many comic-book authors would be happy to use that name inside their works without paying George Lucas.

Ok! MINNA! PLEASE! First you say I'm wrong - then you say I'm right! MAKE UP YOU MIND MINNA - PLEASE! You can't have it both ways. Further, copyrights are NOT the most important! Patents and Trademarks supercede them. Copyrights, next to these two things, are not worth anything. Only when Patents and Trademarks are outside of the area you want to talk about do they come into play. Otherwise - the other two take president. As do Trade Secrets. That's why, a few years ago, there was this big court case when some professor (TOO BAD! I forget the specifics!) who had done some work under a Trade Secret agreement wrote documentation about the Trade Secrets and copyrighted them. That action caused him to be fined and he had to give up his copyrighted work. Because even Trade Secrets have more power than copyrights.

Ok, that doesn't parse too well as an English sentence. But it appears to be an agreement with me, which makes your recent usage of "Incorrect again!" even less comprehensible.

OH GOD MINNA! Are you now an english critic as well? GIVE ME A BREAK! It is a perfectly good English sentence. And at least I'm not contradicting myself and being wishy washy about whether someone or something is right or wrong. If you had read the sentence correctly you would have understood that only that one particular instance and usage of the terms "Superman" and "Luke Skywalker" are protected - but it doesn't mean I can't use the terms, processes, or ideas of Superman and Luke Skywalker in other ways.

FOR INSTANCE: You can write "My man is a Superman!" and not be sued. You can write "It stuck to the wall as if Spiderman had shot his web at it." and not be sued! WHY MINNA? WHY? Because the IDEAS behind "Superman" and "Spiderman" are being used and not the single special case. However, I can't write a book about the adventures of Superman or Spiderman because I WILL BE SUED! WHY MINNA? WHY? It is because then I'm treading on the formerly held copyrights! There's a difference there you can't seem to grasp.

No. It was a direct quote from USC copyright law, which you completely misinterpreted. And if you somehow thought that the text of an ancient, preexisting law somehow came "out of the case"... well, that suggests why nobody else bothered to reply to you.

OH GOD AGAIN MINNA! WILL YOU EVER GET THE FACTS STRAIGHT? I doubt it. The quote says, in unambiguous English that IDEAS, PROCESSES, etc... are NOT COVERED BY COPYRIGHT LAW! How much clearer can it be?

nothing to do with the GPL

[iamnotanumber6]

really - whether this was a settlement or a judgement, it really has nothing to do with "testing" the GPL.

1. some people (Drew) wrote some software that complied to (implemented) a standard.
2. the standard is copyrighted by someone else, the SAE (the issue of whether they can copyright or charge royalties on something that's part of the law I think is a side issue).
3. SAE tried to claim ownership of the copyright of the software, claiming it was a "deriviative work" of the standard.
4. they were unsuccessful in doing so, the core reason being because copyright only covers a particular composition of text, not the "ideas, procedures, processes, methods of operation, concepts, principles, or discoveries," that may be described, explained, illustrated, or embodied" within it. if I write a book explaining how to turn lead into gold, you can't copy the sentences and paragraphs I wrote. but you can certainly write your own book explaining the same procedure. this is a long-standing principle, and no new legal ground was broken here - no precedents.
5. Drew was confirmed as the legal copyright owners of their software, not the SAE, which was what the case was about.
6. Drew (had) happened to release the code under the GPL. This is an expression of how they wish to excercise their copyrights. But nothing about the GPL was tested or decided. Only that Drew owns the copyright, which allows them to release it under GPL, and SAE cannot prevent them from doing that because SAE does not own the copyright because it is not a derivative of SAE's copyrighted work.

the validity and terms of the GPL never entered into it. talk about a "victory for the GPL" is nonsense.

Re:nothing to do with the GPL

[logical1010]

Since the ownership of the work rests with DrewTech SAE is guilty of breaking the GPL. Therefore had to pay DrewTech. Instead of the court ordering restitution, SAE and DrewTech settled on their own. It can be said SAE was fearfull of the GPL. But you are correct in saying the GPL was not "tested" or used to base a decision upon. I think with the use of embedded F/OSS being used we will see a real test case shortly.

Re:*applause*

[Artifakt]

Suppose we take the proposition: The 28 year limit on copyright was the last form of the law that should be recognized - the Supreme court was wrong in ruling that the phrase in the Constitution "for a limited time" meant anything up to 1 day short of eternity.

then:

1a.) Copyright infringment of works under 28 years old on P2P networks is not OK.
1b.) It's not necessarily theft either, but its not OK.

2a.) Copyright infringment of works over 28 years old on P2P networks is OK.
2b.) (Corrolary derived from another proposition below) - If it should be legal, then it's definitely not theft, (as no form of theft should be legal).
2c.) (Corrolary derived from another proposition below) - If it is theft, then that trumps the 28 year expiration rule and violates one of our first premises, (as no form of theft should have an expiration date, after which it stops being theft).
2d.) If it is theft, then that also trumps the current life +70 rule (by analogy with 2c.))

3a.) Copyright infringment of GPL code is not OK, simply because it's under all under 28 years old.
3b.) It's not necessarily theft, but again it's not OK.

I don't actually support taking just that point as the whole basis for copyright law, and yet I can come up with related arguements from other premises that lead to other such conclusions - you are aware that you stated four propositions with just two numbers there, aren't you? Leaves you wide open.

We could start with the premise that the 56 year version of the law was valid, although now that some forms of copyright violation are criminal, the changes in requiring registration in that law look like they make it a case of taking without compensation from the taxpayers to me (but IANAL). We could start from a later version, although ex-post-facto arguements are being ignored there (again in my NAL opinion). We could start from a given fair use definition, and come to one conclusion or another. Personally, I favor a fair use definition that recognizes both time and space shifting rights, and some forms of hardware agnosticism.

Re:Suing for damages? Inappropriate, IMHO

[DunbarTheInept]

You claim taking my code does not deprive me of property.

NO - listen to what people are saying. They're saying that "copying" and "taking" are two different things. "taking" implies a transfer of a single object - wrong for TWO reaons - one being that a person got the fruits of your labor without your permission, and another, totally unrelated reason, being that you had you've been deprived of your property unfairly. So "taking" implies the dual problem of freeloading AND deprivation of your property. What happens when someone copies is just one half of that picture.

If deprivation does not occur, then "taking" also does not occur. The words were invented long before the technology to make quick instant perfect copies of things was available. So the distinction didn't matter before. Now it does, and the cartels are using the old connotations of the terms to their advantage - trying to make people associate file copying with that feeling of having been deprived of property that is associated with theft.

Does this condone the behavior of the copyright violators swapping files - no, actually. I agree that that's wrong. I just disagree that it should be prosecuted as theft. It's not. It's a brand new kind of crime, one that is mild but has large consequences when done in bulk. And if the law and the cartels insist upon prosecuting it as a larger crime than it is, then nobody will ever respect them, take the problem seriously, and stop doing it. They mock the law because they know it's wrong. And they're right.

Copyright violation is not theft, any more so than jaywalking is murder. Don't punish a minor crime with a major crime's sentencing.

Re:GNU Public License?

[jericho4.0]

That's the General Public License.

This should have been a PATENT case

[erroneus]

I see this as a major screw-up for SAE. They should have had these ideas patented rather than copyrighted. Had they done so, the case would have been addressed in a completely different way.

Of course I haven't read the software source in question, nor the works from which the software was to have been a derivative work... though if I understand it correctly, the software isn't a derivative work from software but from some form of published standard... a protocol or format. This, more or less, falls under the realm of patents if I am not mistaken.

Is this a real test of the GPL? Did the judge issue a ruling that the GPL holds precedence over SAE's claims? From what I read in TFA, SAE agreed to drop the case against DrewTech. This would imply that the judge didn't issue a ruling -- hence an out-of-court settlement.

While this case did gain a judge's audience, I am unclear about how, if the case was dropped, this is a documentable win for the GPL. I'd like it to be, but is it really?

Re:GPL also wasn't the issue - but proved a good t

[shaitand]

It doesn't lower any threshold, this case was settled and therefore sets no precedent.

Re:GPL Derivative Works

[Almost-Retired]

I see you still don't 'get' it regarding the GPL. So let one of those freaks you refer to attempt to enlighten you.

When those GPL'd libraries are linked in, staticly or dynamicly at runtime, you are still making use of code that bears a GPL license. If your code that wants to use that GPL licensed code as part of its functionality isn't GPL also, then the linking is, and properly so, a violation of the GPL and illegal by copyright law.

There is no 'slightly pregnant' here. If you want to use GPL'd code, then your code must be likewise GPL'd or under an approved similar license. End of discussion.

Gawd I wish some dummy would actually let this get to where the judge renders his/her opinion for public record and let the precedent actually be set instead of saveing a few on attorneys fees with a settlement when they realise that tweaking the GPL tigers tail is going to get them eaten.

You're right about one thing, these decisions really are quite obvious. Oh, and go learn how to spell license too. There are in fact several ways, but yours is not among them in my dictionary.

--
Cheers, gene
"There are four boxes to be used in defense of liberty:
soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
99.34% setiathome rank, not too shabby for a WV hillbilly

Re:GNU Public License?

[BlueWonder]

Lol...is this guy for real?

Yes.

Results 1 - 10 of about 453,000 for GNU Public Licence.

Sure, but does any of the pages contain a hint that a "GNU Public Licence" actually exists?

Now then, as to what it is...

I know what the GNU General Public License is. Follow the link in my sig, and you'll see that I've used it myself for years. The article, however, talks about a "GNU Public License".

Re:GPL also wasn't the issue - but proved a good t

[Ungrounded Lightning]

It doesn't lower any threshold, this case was settled and therefore sets no precedent.

I didn't say that the CASE may lower a threshold. I said that USING the GPL may lower a threshold.

When part of your payment is intangible fallout from your open source distribution it may take less action by the infringer (or an action he's more likely to take) to produce damages a court would recognize than it would, say, in the case of a proprietary program.

why...

[Anonymous Coward]

was copyright instituted as a privilege in the first place?

Instead of just making a few conjectures based on guesses and a narrow perspective on the topic, I suggest you make some research on your own. That way, you'll bring something to the table.

The question isn't what use there is for novels. The question is what use is there for copyright. Historically, ever since Baldesar Castiglione and before, books had been re-typeset, distributed, translated and been entirely free game for anyone willing to make a quick buck. This often resulted in a bastardization of the work in question, questions about who was the original author and how the work should be presented to the world.

Books were more labour-intensive back then. The typesetting, printing, binding, as well as the production of paper all involved a relatively much higher investment. I have always seen copyright as the right to choose how the child of one's mind will be seen, as the blame w.r.t. corrupted derivatives will surely fall on the author. What is just as sure is that economic forces will favour those who do shoddy work to underbid the original author.

Copyright is about the rights of one person to distribute his own work in the manner he sees fit. Traditionally, it has served a vital role in ensuring a clarity in the common European discourse on academic topics. The economic implications were originally merely secondary, yet as the lowest tend to rule where a common understanding and ideal is lacking, it is nowadays seen as the main reason for copyright.

This is why I can but be ambivalent on the matter of copyright today. Seeing how the recording industry treats those that wish to be artists, how the publishing industry uses college text books as cash cows, and how the movie and advertisement industries have joined forces to warp common sense to promote lifestyles and the associated spending habits, I cannot endorse what copyright has become. Yet doing away with it altogether would open up the gates for the same sort of injustices that originally produced the necessity for it -- on a much larger scale, and at an infinitely greater pace.

Unfortunately, this is an area of discussion that cannot be open, as there are far too many economic interests involved. That in itself is a sign the copyright laws have failed, as the artistic concerns and the concept of credit where credit is due are only secondary in the debate.

Re:GNU Public License?

[uncommonlygood]

And whoosh, there goes the joke.

The "GNU public license" does not exist, references on google are mistakes.

GPL

What this has to do with the GPL

[Teancum]

The problem was that SAE claimed ownership of the software as a derivitive work (even though they didn't write it).

Also, and this is the killer part here, SAE tried to distribute the software in violation of the terms of the GPL, including not redistributing the source code, claiming to own the software under a propritary license arrangement, and violating section 7 of the GPL, which dumps the GPL license altogether and prohibits distribution of the software under any means what so ever.

In essense, this really is a test of section 7 of the GPL, and by doing what SAE did on their website, they violated this portion of the GPL and hence it turned into a simple unauthorized distribution of copyrighted material subject to normal copyright penalties.

The rest is muddled into arguments over actual ownership of the copyright, but that was quite clear in this case, and even if it turned out that SAE would "own" the software via derivitive works theory, they still wouldn't be able to distribute the software, and were in willful violation of the copyright laws. Had this been the case, the GPL would have been a much bigger factor, but instead the court ruled that software can't be considered a derivitive work based only on figures and standards from another document.

Too bad this only applies in the state of Michigan, as this sort of ruling does have national significance. It is legal precedence, however, and can be used to bolster an argument in other courts in the USA for similar cases.

Re:Suing for damages? Inappropriate, IMHO

[plague3106]

Please explain how its a bullshit arguement. Its not possible that someone would put effort into downloading but not be willing to pay for it?

Just because someone isn't willing to buy doesn't mean they aren't willing to use it for free. Hence, its not a lost sale.

Re:GPL Derivative Works

[zotz]

"However if you are going to distribute the GPL code, you must follow the licience, that is, any GPL or derivative code you distribute or copy must be licienced with compatibility to GPL."

I don't like that they do it, or did it, but isn't that how nvidia got around the GPL vs. binary drivers?

They did not actually distribute any GPLed code. So, losing the right to distribute GPL code that they did not distribute in any case was not a problem. Am I remembering this correctly?

all the best,

drew

Re:GPL Derivative Works

[zotz]

"My point is, using code is not the same as making a derivative of it, and thus the GPL does not (and should not) prevent me from using GPL libraries in non-GPL code."

So your point is that in the case libraries licensed "Copyright 2005 Foo Nanki, all rights reserved" you are free to link to them and not pay or whatever and everything is cool as it relates to copyright law? If not, please explain the difference as you see it.

all the best,

drew

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Suing for damages? Inappropriate, IMHO

[Minna Kirai]

By taking it, you deprive me of the oppoerunity to sell it to you.

There are many people who want to sell me things, and many ways I can deprive them of the opportunity to do so. Most of those ways are legal, but even the ones which aren't legal are still not always theft.

For example, sneaking into a movie theater deprives them the chance to sell me a ticket, but isn't theft. It's trespassing. Calling it theft sounds idiotic, as if you can only concieve of one word for all possible crimes. "Help, police, there's a thief! He lit my house on fire!!"

The issue is whether you are using/taking someone else's property without permission.

If you think that's the issue, then say "using/taking" and not "stealing", and don't complain when people don't want to use "stealing".

It's like if there is a debate about abortion of human fetuses, and one side says "We shouldn't allow the murder of babies". It's completely correct for their opponents to dispute the use of those words- because accepting them would mean acquising to defeat. If the "pro-life" guys can trick the "pro-choice" debater into saying "Somtimes it should be legal to murder an unborn baby", they've won the PR battle.

The wrongness of abortion / copyright-infringement is a separate question from the wrongness of murder / theft. By attempting to use the latter severe terms for the former, separate actions, you attempt to prevent having a rational debate at all.

"Copyright infringment is theft" is just as dishonest a bumper-sticker sentiment as "abortion is murder"

Re:Suing for damages? Inappropriate, IMHO

[Minna Kirai]

Do radio stations pay license fees to music artists? I didn't think they did.

Yes, but it's done in bulk. The station pays a single lump fee to the music publishing association, which then splits it up amoung all the musicians according to their popularity percentage. (So your little indie-rock jam tapes can pay the billboard top 40)

Asking the DJs to write down each song played might be fairer, but its a whole lot of work. Probably whoever owned your transmitter handled that fee already, and you DJs never even had to be told of it.

Re:*applause*

[Minna Kirai]

Sig: Playgirl editor Michele Zipp was recently fired for being Republican.

In related news, Republican Michele Zipp was recently fired for being a pornographer.

(And in light of that, it's more plausible that she was fired from Playgirl for being a gargantuan hypocrite, a characteristic inherent in any Republican smut-peddler)

Re:*applause*

[Minna Kirai]

Suppose we take the proposition:

You are expending far too much intellectual energy on someone who's proven herself not to be worth it. The only productive effect of a post there can be denying bonch the "last word", but since she won't care what it says (or even really read it), that could've been accomplished much more easily with 2 lines of quasi-witticisms.

Re:Suing for damages? Inappropriate, IMHO

[kurzweilfreak]

I'm of the opinion that people deserve compensation for their work and that you don't have the right to take it for free just because you can. It's pretty hypocritical that you would think that my work and time isn't worth paying for, but it's still worth enough to use. I can't see how anyone would fail to agree if the positions were reversed and it was their work that was being freeloaded. If you're freely giving your work away that's your perogative, but you have no right to take for free what someone else has created without due compensation that _they_ decide on.

To answer you, it's a bullshit argument because on one hand you're saying that (insert noun here) has no value or worth, and then turning right around to say it's worth using. Sure, it's possible that someone would put effort into downloading it but not be willing to pay for it; I would call that person a hypocrit and an asshole. But that's just me, obviously there's a whole world of people out there who don't give a fuck about anyone but themselves. Bravo.

I would think that with as many people on /. bitching about corporations, lawmakers, and scientists, saying "just because you CAN, have you stopped to think if you SHOULD?" that they would have the balls to apply that to themselves. Then again, this is teh slashdot...

Re:I'll guess: because you are an astroturfer?

[spoonyfork]

You're a real piece of work. I've read all your anonymous posts in this article. It really isn't any different than before which is the disappointing part. It must suck not having enough influence to make the waves you'd really like to.

Tell us, what will you do with the power you so richly desire once you get it.. if you get it? Strike down all those that mocked you on pissy little blogs like slashdot? You can do better than that.Go after the ones that are really laughing at you from up above. Aim higher and test your mettle.

The dream case

[xgamer04]

I'm still waiting for the case (in the USA) where an independent developer goes after some company that took his GPL code and is then forced (by court ruling) to open up their whole app or stop using the code. Then Ballmer, SCO, et al can shut up.

Good.

[goldfndr]

As more and more publicity like this spreads, then LESS companies will use GPL code, not MORE. Fewer companies will allow FOSS/GPL code through their doors out of fear of "contaminating" their developers and calling into question any software products they release. This will keep OSS out of the corporate world, not encourage its use!

I shouldn't feed the troll, but...

It depends on the company. Some want to be known for their code, some want it all to be of a proprietary nature. For the latter: Let them fear the GPL. If they can't understand it (which usually means they're unwilling to read it), then they shouldn't touch it, and instead they should be spending their own time/money creating their own code from scratch or using code of licenses they prefer.

A strawman of my own: I don't think we'd want a situation where they used GPL code, their code was forced open, and then it was later found that more code they'd used without authorization got comingled with other GPL-based projects. Not every use of OSS should be encouraged.

SAE?

[eliaalariel]

Self-Addressed Envelope?

Re:Differences

[zotz]

First, let me say that this is far from any area of expertise I may have.

"Now in essence there are two methods of including it in a program: distinction or inclusion."

I am not sure what you are trying to say here.

"Now if my code is distinct from the other code, I could distribute it without the GPL code. Even if it does not work without those, I own the copyright to the code, and so I can do what I want with it."

Yes, and you could also distribute it without the Foo code too. Right? However, would you lose your rights to distribute the gpl code in question if you did this?

"If I mix my distinct code with the library with the GPL licence needed to run it, there is no conflict. Both are seperate entities. Dependence does not make derivative. The owner of the GPL code has no grounds for complaint.

If however I created the same mix with the Foo library, then I am distributing copyrighted works without a licience and it is infingement (or theft or piracy or murder depending on how silly we wish to be with the argument)."

Let's take these two together. If you are correct re the gpl and the "all rights reserved" cases. It would simply mean that the gpl would need to be reworded to fix the issue. Imagine a line starting at public domain and ending at "all rights reserved" - the gpl falls somewhere on that line. It would just need to move a little further towards the "all rights reserved" end and the issue could be resolved in favour of the gpl rights holders' wishes. (gpl license designers wishes?)

For instance, suppose some text like the following was added to the end of hte gpl license:

"You may not distribute this code if you also distribute code which links to this code and that code is not licensed under this license."

Would that do it in your mind?"

all the best,

drew

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[account_deleted]

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Copyright protects who?

[cbr2702]

Copyright law was made to curtail the rights of publishers, and protect the rights of consumers.

Not at all. Copyright law is supposed to promote the "progress of the useful arts and sciences"[1]. Better, it is supposed to increase the amount of art produced (benefiting the people) by making it possible for artists to make a living off their works (benefiting the artists). It can hurt the people if it is made longer than it needs to be to get the artists to create.

No where in here do publishers matter. If every time something is created, everyone gets it free through p2p, then people can't make a living off creating art in the way they're used to. That may or may not be a bad thing, but it is a fundamental change. Perhaps we would switch from having a creative class to a distributed system where everyone creates?

Re:Copyright protects who?

[Alsee]

Copyright law is supposed to promote the "progress of the useful arts and sciences"

Right, and as the prior poster said it does that by curtail[ing] the rights of publishers.
All rights other than "publishing" and public performance are retained by the public.

The reason for the current copyright crisis is that copyright was never intended or expected to apply to the noncommercial activities of ordinary individuals. With P2P everyone is suddenly a publisher. A noncommercial publisher.

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Re:Copyright protects who?

[cbr2702]

Right, and as the prior poster said it does that by curtail[ing] the rights of publishers. All rights other than "publishing" and public performance are retained by the public.

If you look, it says "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". So yes it was intended to apply to the noncommercial activities of ordinary individuals. It was designed to promote progress by limited sheltering. There is nothing about publishing and nothing about one's commercial status.

Re:Copyright protects who?

[Alsee]

I said intent, and intent is not found in the original text.

The intended means of promoting progress is by curtailing the rights of publishers. The text of copyright law does and always has targeted publishing and only publishing. Copyright does and always has restricted the creation of new copies, the distribution of new copies, and public display/performance. In otherwords "publishing". And as I said, every single person using P2P is now a publisher. The general public are now publishers.

The intent of copyright was not to ensure that profits would exist. The intent was to ensure that the profits that were generated would flow to the creator. To give the creator the right to sue and seize misdirected profits.

Copyright ordinarily works quite well and easily in its expected role. It is generally very reasonable and very easy to spot and track down anyone commercially exploiting a work. It is generally very reasonable and easy to sue and win against anyone commercially exploiting a work. It is generally very reasonable and easy to seize big fat monetary damages from anyone commercially exploiting a work.

From there, I merely proposed to explain why there is a "copyright crisis". I am not suggestion what the law should be, and I am not suggesting any solution to the problem. I am merely explaining why there is a problem now. I think you will *agree* with me when I say that applying existing copyright law to deal with things like ordinary general public sitting in their home bedrooms is ugly, unpopular, disrespected and most importantly inneffective. I am not saying whether copyright should or should not attempt to target the noncommercial activites of the ordinary public, I am merely pointing out that it is simply a lousy and inneffective tool for doing so. When copyright was established if was not expected to target or be effective against ordinary people in thier homes. It is now going somewhere it was never expected to go. It is doing a miserable job when stretched to this unexpected role.

I'm not claiming to have any easy simple solution to this conflict. A clear understanding of the nature and origin of the conflict is vitally important to seeking and evaluating potential ways to deal with it.

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Footnotes

[cbr2702]

[1] US constitution, I.8.8

Re:GPL Derivative Works

[Minna Kirai]

you are still making use of code that bears a GPL license.

Irrelevant. "Making use" of GPL code has no relation to the GPL license. In fact, that license specifically says that people can use the supplied program without even agreeing to the license. The GPL only covers copying, modified copying, and distribution.

There is no 'slightly pregnant' here

Yes there is. This area is highly ambiguous, although it has nothing really do to with the GPL itself, and everything to do with the copyright law that gives the GPL its teeth.

Is "linking" to a program or piece of data an act of copyright infringement? Well, copyright law covers "reproduction" and "distribution", and by linking to an external library (or website) my program (or web page) neither reproduces nor distributes... so it doesn't infringe copyright in the straightfoward sense. There may be ways to stretch it to fit though, such as by arguing that the function name or URL used to accomplish the link was itself an item protected by copyright, and thus making the link was reproducing a small amount of protected material- but that's a tenuous reach.

Nonetheless, some plaintiffs have attempted to get linking interpreted as a means of copyright violation, but they haven't really suceeded yet.

As has been said before, the linking to a GPL library will violate the GPL if and only if linking to a copyrighted library is found to be a violation of copyright.