"So if I take your book, add a chapter and sell it for $50, you can't sue me for copyright infringement because all I have to do is pay you the $10 for your book?"
No. In that case, I could sue you for copyright infringement. The right to create a derivative work is a right recognized under copyright law and one not licensed. So your use would exceed the scope of the license under copyright law.
The license doesn't have to say you can't add a chapter because the right to create derivative works is already reserved to me under copyright law. But it does have to say that you must pay me, because there is no right to get paid under copyright law. So adding a chapter is a breach of copyright, not paying me is a breach of contract.
It may, however, be possible to write the contract such that payment is a condition precedent to a grant of license. If that is possible, that would make your distribution with failure to pay a breach of copyright. There are a few cases that say you can't do this, but none of them were well argued or taken to the Federal Appellate level.
The cases I cite, however, stand for the position that you simply cannot create a new right under copyright by adding conditions to a license grant. You cannot 'manufacture' a right to attribution such that distribution with failure to attribute is a breach of copyright simply because these are not rights that exist under copyright law. Breach of the conditions of a license cannot turn something into a breach of copyright law.
So if I license you to make a movie out my book and you have to pay me $1 million, if you don't pay me, that's a breach of contract. If you sell copies of my book, that's copyright infringement.
The film is also a breach of my copyright, as a film is a derivative work.
No, it's not. The contract granted the right to make the movie. Copyright law does not include any right to $1 million, that's coming from contract law.
If the gist of your copyright claim is that the person violated the terms of the license, rather than that he did something reserved under copyright law, then you cannot sue for copyright infringement but you must sue for breach of the license.
From Jacobsen v. Katzer:
Plaintiff's copyrighted decoder definition files are subject to an open source software license that permits potential licensees, members of the public who have access to the files on the internet, to make copies, distribute and create derivative works from the software[.]... The nonexclusive license is subject to various conditions, including the licensee's proper attribution of the source of the subject files. However, implicit in a nonexclusive license is the promise not to sue for copyright infringement.... Defendants' alleged violation of the conditions of the license may have constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist.
In other words, failure to comply with the terms of a license cannot turn something that would not otherwise by a copyright violation (due to the grant of a license) into a copyright violation. Only if there was no license grant at all for the rights involved.
It is a general principle of law that if one offers a license, one waives the right to sue for copyright infringement in exchange for the right to sue for breach of contract. See, for example, Sun v. Microsoft, Jacobsen v. Katzer, and Tansini v. New York Times.
"Generally, a 'copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract. If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement."
The scope of the license is a matter of copyright law and is only informed by the terms of the license, not determined by them.
"You get the right to distribute the Protected Work(s) and make Derivative Protected Work(s) (Also covered by the same license) as long as you abide by the terms- which is you give access to the source code to the original and any derivative work to any recipient of the code in source or binary form that you give it to. The bulk of the GPL license is the boilerplate for establishing the forementioned grant of rights and establishing what is considered to be a breach of the agreement and what happens if that breach occurs. Given that there is no waiving of ANYTHING stated or implied in the verbiage, there is none. Just because there is no remuneration present in the form of monetary exchange does NOT make it a waiving of rights or anything else."
This may seem right, but from a legal standpoint, it makes no sense. If there's no waiver of the right to sue for copyright infringement there is no license. Ask yourself this, "if the GPL is not a promise not to sue someone who complies with the license for copyright infringement, what is it?"
If I say "you may make and distribute copies of my book so long as you pay me $10 each", I definitely cannot sue you for copyright infringement if you don't pay me. The right to a $10 payment does not appear in copyright law. The distribution is authorized by the license, only the license is breached, not copyright.
On the other hand, if you make a movie out of my book, I can sue you for copyright infringement. Creation of derivative works is outside the scope of the license, not just a breach of it.
I know, it's complicated and it should be simple. But that's just the way the law is.
No fees are required for any of the rights it grants, yet it puts restrictions on the exercise of those rights (or, if you prefer, the grants are not unlimited). This makes issues that are normally simple to figure out much more difficult.
For example, if two people negotiate a license agreement that says A can distribute B's book so long as B pays A 15% of the gross receipts, it's clear that the license makes the grant and that the payment is a secondary obligation. If there was non-payment, B would sue A for breach of contract but would have waived the right to sue for copyright infringement.
The GPL is much more complex because it is non-commercial. The "payment" in the form of reciprocation, yet it's written such that the "payment" is a condition precedent to the grant of rights rather than a secondary obligation. Also, there is no agreement between the two particular parties to the GPL.
There haven't been enough cases close to the GPL to figure out exactly what the rule is. The general rule is that things outside of copyright (such as payments) are secondary obligations, not conditions precedent but things inside of copyright (such as selling just film rights) are conditions precedent.
So if I license you to make a movie out my book and you have to pay me $1 million, if you don't pay me, that's a breach of contract. If you sell copies of my book, that's copyright infringement.
If the GPL is read as a license that waives the right to sue for copyright infringement, that would leave only the ability to sue for breach of contract. If the only penalty the contract allows is loss of license, it's not clear what happens. Do you get back the right you waived? The whole GPL then becomes self-referential. "I waive the right to sue you for copyright infringement so long as you give me the right to sue you for copyright infringement."
"Please explain how the license for GCC affects code compiled by it."
GCC embeds bits of itself in the code it creates. I don't think it's completely clear whether it embeds sufficient bits to make every work it compiles a derivative work, but that's certainly not an obviously unreasonable claim. GCC also includes libraries that are used by the code it compiles. These libraries either need to be linked into the compiled code or be around wherever the compiled code is used.
Certain LGPL clauses might have significant effects on code compiled by GCC if the resulting binaries are distributed. Clauses 3a and 3b may required you to include certain notices with your executables. Section 4 may mean that you cannot prevent reverse engineering, which you might otherwise want to do. Section 4d1 may require you to allow users to substitute their own versions for run-time libraries.
"State and Federal courts are quite clear on the fact that the manufacturer is in no way obligate to support a item if the user manipulates said item so as it is not covered under the agreed to contract or warranty."
Here we agree.
"Since hacking your phone to allow it to use other carriers SIM card both voids your AT&T contract AND your warranty with Apple, Apple legally has no obligation to support it at that point."
Here, you are wrong.
15 USC 2302: "No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer's using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name..."
Apple cannot void your warranty simply because you choose to use your phone with another carrier just like Ford can't void your car's warranty if you have your oil changes done by Jiffy Lube.
"Before the government started dictating terms of employment, working 12 hours per day, 6 days per week was the norm. Maybe you want to go back to that plan."
That's what you fear, isn't it? So you have to prohibit him from doing so.
There's this radio ad I manage to hear at least 18 times a day. It's for a mortgage, which is bad enough by itself, but it contains lots of ponderous phrases designed to do nothing but make the speaker sound more important.
"If you were aware of a financial instrument that permitted you to lock in low rates but still retain the ability to modify your payment schedules if your financial circumstances were to change, wouldn't you want to take advantage of that financial instrument?"
The other thing that annoys me are ads that don't tell you the price of the product. This comes in two basic forms:
1) The car ad. "Just $199 per month for 36 months with $2,447 due at signing." No interest rate is ever disclosed. Okay, so how much is the car?
2) The salad shooterish late night TV ad. "Just $29.99 plus postage and handling, send your check or money order to..." Umm, okay, how much do I make the check or money order out for? The P&H is never disclosed.
Anyway, now I have two new reasons to hate the "try my product" guy. First, he's trying to use legal means to silence people who don't like his business practices. Second, he's selling a product that nobody has any use for. Does anybody need random educational CDs sent to them at full price? "Oh, great, an introduction to Powerpoint. Too bad I don't have Powerpoint." "Look, it's 'Windows Paint and You'. Too bad I'm a whiz at Photoshop."
I'm in the same situation as the OP. ISDN is my solution. I have 2 ISDN BRI lines (2B+D). I have two B channels nailed up full time and two on-demand. That means my maximum upload/download speed is 256Kbps. For this, I pay just under $200/month. I have static IP space and can run servers, VPNs, and anything else I want. I've had this setup for about three years now.
Sadly, radio doesn't quite work. Which is too bad, because my ISP would love to give me more speed for less cost. Of that $200, about $100 goes to the telco and $100 to my ISP.
It's up to all of us who use LINUX based operating systems to correct people so that when they say "LINUX" when they should mean Redhat, SuSE, Debian, Ubuntu, etc. It's easy, when somebody says "LINUX" unless they are talking directly about kernel you should give them a curious questioning look and say "I'm sorry...did you mean to say ?"
I think you're being deliberately dense. Linux is a family of operating systems, united by a largely common kernel and a largely common set of basic utilities. It is perfectly sensible to use the term "Linux" to refer to this family of operating systems, just as people use the term "Windows" to refer to that family of operating systems.
A person who says "this program runs on Linux" doesn't mean the kernel and doesn't mean any particular distribution either. They mean about the same thing a person who says "this program runs on Windows" means. The information isn't particularly detailed (Does it run on Fedora Core 2? Does it run on Vista?) but we certainly know precisely what they are and are not saying.
It is certainly possible for a person to say "Linux" when they mean a particular distribution, but this by far the exception rather than the rule. Most people who use the term "Linux" to refer to something other than the kernel mean the family of operating systems, including the kernel, compiler, shell, and so on.
What they mean is "what the vast majority of Linux distributions have in common". Which is exactly what people mean by "Windows".
"Given the nature of GPL software, it seems to me that there are many ways in which I could 'come upon' a copy of the software without a sale being involved (thus first sale doesn't apply),"
First sale rights are not dependent upon how you acquired a work. First sale simply means that every lawfully-made and acquired copy of a work comes with the right to its ordinary use and the sale of that copy. You cannot violate copyright by using or selling a legal copy of a work.
"and as I noted, the GPL does include a provision which allows me to use the software. (There's also the longstanding debate about whether 'first sale' applies to software that is 'not sold, but licensed'.)"
The GPL includes that provision because it has no choice. The United States does not restrict use to the copyright holder because that would result in absurdities. For example, I could drop a million copies of my poem from an airplane and then sue everyone who read it.
Read United States copyright law. You will find nothing that permits a copyright holder to control how his work is used in the ordinary and expected way. If you buy, find, or otherwise lawfully acquire a book, you need to license to read it.
As for whether first sale applies to software that is licensed, it absolutely and unequivocally does. You misunderstand the debate. The debate is over whether (and to what extent) it can be restricted by different types of EULAs (shrink wrap agreements, click-throughs, and so on), not whether it applies. Note that the GPL and BSD licenses are nothing like these kinds of licenses at all. The GPL and BSD are just offers.
I don't think anybody seriously argues that first sale doesn't apply to any case where a person lawfully acquires a copyrighted work.
"I was just wondering if there was a legal hair to be split about how I might come in possession of a copy. Since you refer to 'lawful copy', that implies the existence of an 'unlawful copy'.... I'm curious as to what mechanisms distinguish between lawful and unlawful copies, and whether the GPL is involved in those mechanisms."
If a GPL-violator were to distribute a copy of a GPL'd work to you, that might technically not be a lawful copy. In practice, with the GPL, all copies are lawful.
The law just makes the distinction because otherwise the guy on the street corner selling movies for $2 can say "I'm not copying anything so I'm not violating copyright. I have first sale rights to these."
"Is it the case that even if someone distributes in violation of the GPL, the copy I receive from them is a lawful copy? (on your second example, I understand 'use' to mean that the fault lies with the distributor/airdropper; as long as you're legally able to distribute your poem, you can't sue the readers)."
I believe in that case it would not be a lawful copy. First sale wouldn't apply to you. It would be just as unlawful to sell or transfer that copy as it would to sell or transfer a pirated DVD you bought on the street for $2.
Though GPL section 4 might change this, as it seems to imply that one party's violation does not affect another party's rights. It's vague on this point though, so it's hard to say. It's not clear that it controls the case where technically you never got any rights in the first place because the duplication/distribution to you was unlawful.
Fortunately, in practice, this never comes up in GPL cases.
That's correct, the scores are normalized so that the distributions are the same. This means you *can't* compare scores across years. If you did, you would find that, amazingly, the distributions were the same. But have the students stayed the same? Nope. Have the questions stayed the same? No again.
If you google around, you'll see articles about how "national SAT scores fell for the second year in a row" or some nonsense like that. There are ways you can sensibly compare SAT scores across years, but you cannot compare averages over a significant fraction of the testing pool.
You don't have to worry about violating the treaty. It is not self-executing, so it has no direct effect. The treaty gives the government certain rights and commits other governments to certain obligations. It is, however, not a law you can violate until an implementation act is passed. The act that implemented this treaty did not implement this provision.
Ronald Reagan was big about promoting commercial space exploration and a series of laws were passed under his administration. I think they make things relatively easy for you, but you do have to jump through quite a few FAA Office of Space Exploration hoops. (I think their main concern is safety -- if your rocket blows up or crashes or something.)
"I realize they have to make the source to busybox available under the GPL it they use it in their firmware."
Precisely, and if they realized that, there'd be no problem.
If your implicit question is "why is this a big deal", the answer is that the GPL has never been tested in a United States court, and this case has (apparently) smart lawyers on both sides. So if there are any interesting arguments for or against the legal effectiveness of the GPL, we will likely hear them.
If, as rational people expect, this lawsuit establishes the validity of the GPL, a lot of nervous people will rest a little bit more easily.
"" So my question is, what part of the GPL is the one that "grants [me] legal access to the copyrighted material"? ""
Your question is based upon a legal error. What makes you think such a thing is needed? When you buy a book at a bookstore, what is that grants you legal access to the copyrighted material?
There are two legal principles you are missing:
1) First sale. This means that every lawful copy of a protected work includes the right to its normal use.
2) Use. If you read copyright law, you will see a list of rights that are reserved to the author. Ordinary *use* is not on the list.
If you think about it, it must be this way. Otherwise, I could write a poem, drop a million copies of it from an airplane, and sue everyone who read it.
The GPL simply offers you *additional* rights that otherwise would be reserved to the authors. You need not accept it if you don't wish to, but then you don't get those additional rights.
"Under Anglo-American Law, a contract requires consideration. With the GPL there is no consideration,and hence no contract."
Huh? There is definitely consideration on both sides in the case of the GPL. In exchange for agreeing to offer source code to any derivative works you distribute, you gain the right to create derivative works and distribute the original work (in original or modified form).
You may have missed the "in the first place" part of my question.
A server has to be set up before a client can connect to it. Whoever sets up the server makes the offer. Whoever connects to the server accepts it. I honestly don't see how you can make a coherent contrary argument.
In this case, it's only human actions that matter. You can't say the server accepts the client's offer because this is a guaranteed committed consequence of human actions that have already taken place.
"Even if you are talking about the person who is running the client and the person who is running the server, it's the the person running the client who actually makes an offer (i.e. give the resource at this URL or accept this e-mail and put in the specified box) and it's the person running the server that accepts it."
So where does the client get the URL from in the first place, if not from an offer?
Your argument would make sense if the URLs just appeared in the mind of the client's human operator by divine inspiration. But that's not what happens.
You contradicted your own point. If it's the human beings that make and accept the offers, and it is, then it's the server operator who acts first, making the offer, and the client's operator who acts second, accepting the offer.
You are arguing correctly that the human beings make and accept the offers, but then argue that the offer is accepted before it is made! That's clearly impossible.
"There is no implied-in-fact contract without conduct from both parties from their intention to form a tacit understanding can be inferred."
Any time one party makes an offer to another, and the other accepts the offer, there's at least an implied contract. That's clearly what's happening in the case of mail servers and web servers. These are both offers of service in exchange for certain restrictions on how you can use it that are known and understood by both sides.
We can certainly argue over what those restrictions are how well known and understood they are. But I think it's crazy to argue that I can offer something, you can take that something, and there is no implied contract. It's clear that I don't mean you can do whatever you want. We both understand that.
Even without this rule, it would be legal. Owners of physical devices aren't circumventing anything when they use the devices they own. It's well-settled law that you can't use copyright to cover "magic words" or purely functional mechanisms. See Chamberlain v. Skylink and Lexmark v. Static Controls.
You can use copyright to protect the actual thing you are copyrighting. But you can't use copyright as a lock out to secure a monopoly. You can't own "every way to make an iPhone work with another wireless company" through copyright, only through patent.
I'm curious what your theory is for why it's not just without being fraud. I mean, we all know that force is not just even though it's not fraud. So what is it that makes this unjust?
Spam *is* fraud. When you connect to a mail server, there's an implied contract. When a person offers something under terms everyone knows and understands, taking it while ignoring the terms is fraud.
If you walk into a barbershop, sit down for a haircut, and then the barber asks for $350, it's fraud. He implicitly accepted the contract you offered him by sitting down for a haircut, and then violated its terms by charging you a price you would not have agreed to.
It's the same think if you send an email or a web query and attempt to force an arrangement you *know* the victim would not have agreed to.
"Seriously, though, how can anyone possibly believe this could ever work? The computing world is driven by countless specialist applications, many of them written in-house by small businesses, or just by individuals to solve a specific problem they have. It's pretty obvious that no organisation could possibly whitelist all of this stuff effectively, without having some sort of automated system that every malicious developer in the world could abuse just as easily."
Here's how it will happen:
1) The whitelist will drive people crazy.
2) Someone will come up with a language that is so secure, there's no need to whitelist. This might be Java or a scripting language or some such thing.
3) To get work done, people will disable whitelisting for the language developed in '2'. They'll trust that they can run anything because the language is secure.
4) Vulnerabilities in that language will surface, and web pages will use them to take over people's computers.
And we'll be right back where we started. We'll just have gone through a lot of trouble and our software will run a lot slower.
When I was in college, I learned all the reasons the features on a CPU couldn't be significantly less than 1 micron in size. I also learned that 20Kbps was about the theoretical upper limit for modems.
Slashdot Mirror
"So if I take your book, add a chapter and sell it for $50, you can't sue me for copyright infringement because all I have to do is pay you the $10 for your book?"
No. In that case, I could sue you for copyright infringement. The right to create a derivative work is a right recognized under copyright law and one not licensed. So your use would exceed the scope of the license under copyright law.
The license doesn't have to say you can't add a chapter because the right to create derivative works is already reserved to me under copyright law. But it does have to say that you must pay me, because there is no right to get paid under copyright law. So adding a chapter is a breach of copyright, not paying me is a breach of contract.
It may, however, be possible to write the contract such that payment is a condition precedent to a grant of license. If that is possible, that would make your distribution with failure to pay a breach of copyright. There are a few cases that say you can't do this, but none of them were well argued or taken to the Federal Appellate level.
The cases I cite, however, stand for the position that you simply cannot create a new right under copyright by adding conditions to a license grant. You cannot 'manufacture' a right to attribution such that distribution with failure to attribute is a breach of copyright simply because these are not rights that exist under copyright law. Breach of the conditions of a license cannot turn something into a breach of copyright law.
No, it's not. The contract granted the right to make the movie. Copyright law does not include any right to $1 million, that's coming from contract law.
If the gist of your copyright claim is that the person violated the terms of the license, rather than that he did something reserved under copyright law, then you cannot sue for copyright infringement but you must sue for breach of the license.
From Jacobsen v. Katzer:
In other words, failure to comply with the terms of a license cannot turn something that would not otherwise by a copyright violation (due to the grant of a license) into a copyright violation. Only if there was no license grant at all for the rights involved.
It is a general principle of law that if one offers a license, one waives the right to sue for copyright infringement in exchange for the right to sue for breach of contract. See, for example, Sun v. Microsoft, Jacobsen v. Katzer, and Tansini v. New York Times.
"Generally, a 'copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract. If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement."
The scope of the license is a matter of copyright law and is only informed by the terms of the license, not determined by them.
"You get the right to distribute the Protected Work(s) and make Derivative Protected Work(s) (Also covered by the same license) as long as you abide by the terms- which is you give access to the source code to the original and any derivative work to any recipient of the code in source or binary form that you give it to. The bulk of the GPL license is the boilerplate for establishing the forementioned grant of rights and establishing what is considered to be a breach of the agreement and what happens if that breach occurs. Given that there is no waiving of ANYTHING stated or implied in the verbiage, there is none. Just because there is no remuneration present in the form of monetary exchange does NOT make it a waiving of rights or anything else."
This may seem right, but from a legal standpoint, it makes no sense. If there's no waiver of the right to sue for copyright infringement there is no license. Ask yourself this, "if the GPL is not a promise not to sue someone who complies with the license for copyright infringement, what is it?"
If I say "you may make and distribute copies of my book so long as you pay me $10 each", I definitely cannot sue you for copyright infringement if you don't pay me. The right to a $10 payment does not appear in copyright law. The distribution is authorized by the license, only the license is breached, not copyright.
On the other hand, if you make a movie out of my book, I can sue you for copyright infringement. Creation of derivative works is outside the scope of the license, not just a breach of it.
I know, it's complicated and it should be simple. But that's just the way the law is.
No fees are required for any of the rights it grants, yet it puts restrictions on the exercise of those rights (or, if you prefer, the grants are not unlimited). This makes issues that are normally simple to figure out much more difficult.
For example, if two people negotiate a license agreement that says A can distribute B's book so long as B pays A 15% of the gross receipts, it's clear that the license makes the grant and that the payment is a secondary obligation. If there was non-payment, B would sue A for breach of contract but would have waived the right to sue for copyright infringement.
The GPL is much more complex because it is non-commercial. The "payment" in the form of reciprocation, yet it's written such that the "payment" is a condition precedent to the grant of rights rather than a secondary obligation. Also, there is no agreement between the two particular parties to the GPL.
There haven't been enough cases close to the GPL to figure out exactly what the rule is. The general rule is that things outside of copyright (such as payments) are secondary obligations, not conditions precedent but things inside of copyright (such as selling just film rights) are conditions precedent.
So if I license you to make a movie out my book and you have to pay me $1 million, if you don't pay me, that's a breach of contract. If you sell copies of my book, that's copyright infringement.
If the GPL is read as a license that waives the right to sue for copyright infringement, that would leave only the ability to sue for breach of contract. If the only penalty the contract allows is loss of license, it's not clear what happens. Do you get back the right you waived? The whole GPL then becomes self-referential. "I waive the right to sue you for copyright infringement so long as you give me the right to sue you for copyright infringement."
"Please explain how the license for GCC affects code compiled by it."
GCC embeds bits of itself in the code it creates. I don't think it's completely clear whether it embeds sufficient bits to make every work it compiles a derivative work, but that's certainly not an obviously unreasonable claim. GCC also includes libraries that are used by the code it compiles. These libraries either need to be linked into the compiled code or be around wherever the compiled code is used.
Certain LGPL clauses might have significant effects on code compiled by GCC if the resulting binaries are distributed. Clauses 3a and 3b may required you to include certain notices with your executables. Section 4 may mean that you cannot prevent reverse engineering, which you might otherwise want to do. Section 4d1 may require you to allow users to substitute their own versions for run-time libraries.
There are other reasons.
"State and Federal courts are quite clear on the fact that the manufacturer is in no way obligate to support a item if the user manipulates said item so as it is not covered under the agreed to contract or warranty."
Here we agree.
"Since hacking your phone to allow it to use other carriers SIM card both voids your AT&T contract AND your warranty with Apple, Apple legally has no obligation to support it at that point."
Here, you are wrong.
15 USC 2302: "No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer's using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name..."
Apple cannot void your warranty simply because you choose to use your phone with another carrier just like Ford can't void your car's warranty if you have your oil changes done by Jiffy Lube.
"Before the government started dictating terms of employment, working 12 hours per day, 6 days per week was the norm. Maybe you want to go back to that plan."
That's what you fear, isn't it? So you have to prohibit him from doing so.
There's this radio ad I manage to hear at least 18 times a day. It's for a mortgage, which is bad enough by itself, but it contains lots of ponderous phrases designed to do nothing but make the speaker sound more important.
..." Umm, okay, how much do I make the check or money order out for? The P&H is never disclosed.
"If you were aware of a financial instrument that permitted you to lock in low rates but still retain the ability to modify your payment schedules if your financial circumstances were to change, wouldn't you want to take advantage of that financial instrument?"
The other thing that annoys me are ads that don't tell you the price of the product. This comes in two basic forms:
1) The car ad. "Just $199 per month for 36 months with $2,447 due at signing." No interest rate is ever disclosed. Okay, so how much is the car?
2) The salad shooterish late night TV ad. "Just $29.99 plus postage and handling, send your check or money order to
Anyway, now I have two new reasons to hate the "try my product" guy. First, he's trying to use legal means to silence people who don't like his business practices. Second, he's selling a product that nobody has any use for. Does anybody need random educational CDs sent to them at full price? "Oh, great, an introduction to Powerpoint. Too bad I don't have Powerpoint." "Look, it's 'Windows Paint and You'. Too bad I'm a whiz at Photoshop."
I'm in the same situation as the OP. ISDN is my solution. I have 2 ISDN BRI lines (2B+D). I have two B channels nailed up full time and two on-demand. That means my maximum upload/download speed is 256Kbps. For this, I pay just under $200/month. I have static IP space and can run servers, VPNs, and anything else I want. I've had this setup for about three years now.
Sadly, radio doesn't quite work. Which is too bad, because my ISP would love to give me more speed for less cost. Of that $200, about $100 goes to the telco and $100 to my ISP.
That guy uses the word "product" more times in a minute than most people do all month. God, I hate that guy! Now I have one more reason.
I think you're being deliberately dense. Linux is a family of operating systems, united by a largely common kernel and a largely common set of basic utilities. It is perfectly sensible to use the term "Linux" to refer to this family of operating systems, just as people use the term "Windows" to refer to that family of operating systems.
A person who says "this program runs on Linux" doesn't mean the kernel and doesn't mean any particular distribution either. They mean about the same thing a person who says "this program runs on Windows" means. The information isn't particularly detailed (Does it run on Fedora Core 2? Does it run on Vista?) but we certainly know precisely what they are and are not saying.
It is certainly possible for a person to say "Linux" when they mean a particular distribution, but this by far the exception rather than the rule. Most people who use the term "Linux" to refer to something other than the kernel mean the family of operating systems, including the kernel, compiler, shell, and so on.
What they mean is "what the vast majority of Linux distributions have in common". Which is exactly what people mean by "Windows".
"Given the nature of GPL software, it seems to me that there are many ways in which I could 'come upon' a copy of the software without a sale being involved (thus first sale doesn't apply),"
First sale rights are not dependent upon how you acquired a work. First sale simply means that every lawfully-made and acquired copy of a work comes with the right to its ordinary use and the sale of that copy. You cannot violate copyright by using or selling a legal copy of a work.
"and as I noted, the GPL does include a provision which allows me to use the software. (There's also the longstanding debate about whether 'first sale' applies to software that is 'not sold, but licensed'.)"
The GPL includes that provision because it has no choice. The United States does not restrict use to the copyright holder because that would result in absurdities. For example, I could drop a million copies of my poem from an airplane and then sue everyone who read it.
Read United States copyright law. You will find nothing that permits a copyright holder to control how his work is used in the ordinary and expected way. If you buy, find, or otherwise lawfully acquire a book, you need to license to read it.
As for whether first sale applies to software that is licensed, it absolutely and unequivocally does. You misunderstand the debate. The debate is over whether (and to what extent) it can be restricted by different types of EULAs (shrink wrap agreements, click-throughs, and so on), not whether it applies. Note that the GPL and BSD licenses are nothing like these kinds of licenses at all. The GPL and BSD are just offers.
I don't think anybody seriously argues that first sale doesn't apply to any case where a person lawfully acquires a copyrighted work.
"I was just wondering if there was a legal hair to be split about how I might come in possession of a copy. Since you refer to 'lawful copy', that implies the existence of an 'unlawful copy'.... I'm curious as to what mechanisms distinguish between lawful and unlawful copies, and whether the GPL is involved in those mechanisms."
If a GPL-violator were to distribute a copy of a GPL'd work to you, that might technically not be a lawful copy. In practice, with the GPL, all copies are lawful.
The law just makes the distinction because otherwise the guy on the street corner selling movies for $2 can say "I'm not copying anything so I'm not violating copyright. I have first sale rights to these."
"Is it the case that even if someone distributes in violation of the GPL, the copy I receive from them is a lawful copy? (on your second example, I understand 'use' to mean that the fault lies with the distributor/airdropper; as long as you're legally able to distribute your poem, you can't sue the readers)."
I believe in that case it would not be a lawful copy. First sale wouldn't apply to you. It would be just as unlawful to sell or transfer that copy as it would to sell or transfer a pirated DVD you bought on the street for $2.
Though GPL section 4 might change this, as it seems to imply that one party's violation does not affect another party's rights. It's vague on this point though, so it's hard to say. It's not clear that it controls the case where technically you never got any rights in the first place because the duplication/distribution to you was unlawful.
Fortunately, in practice, this never comes up in GPL cases.
That's correct, the scores are normalized so that the distributions are the same. This means you *can't* compare scores across years. If you did, you would find that, amazingly, the distributions were the same. But have the students stayed the same? Nope. Have the questions stayed the same? No again.
If you google around, you'll see articles about how "national SAT scores fell for the second year in a row" or some nonsense like that. There are ways you can sensibly compare SAT scores across years, but you cannot compare averages over a significant fraction of the testing pool.
You don't have to worry about violating the treaty. It is not self-executing, so it has no direct effect. The treaty gives the government certain rights and commits other governments to certain obligations. It is, however, not a law you can violate until an implementation act is passed. The act that implemented this treaty did not implement this provision.
Ronald Reagan was big about promoting commercial space exploration and a series of laws were passed under his administration. I think they make things relatively easy for you, but you do have to jump through quite a few FAA Office of Space Exploration hoops. (I think their main concern is safety -- if your rocket blows up or crashes or something.)
"I realize they have to make the source to busybox available under the GPL it they use it in their firmware."
Precisely, and if they realized that, there'd be no problem.
If your implicit question is "why is this a big deal", the answer is that the GPL has never been tested in a United States court, and this case has (apparently) smart lawyers on both sides. So if there are any interesting arguments for or against the legal effectiveness of the GPL, we will likely hear them.
If, as rational people expect, this lawsuit establishes the validity of the GPL, a lot of nervous people will rest a little bit more easily.
"" So my question is, what part of the GPL is the one that "grants [me] legal access to the copyrighted material"? ""
Your question is based upon a legal error. What makes you think such a thing is needed? When you buy a book at a bookstore, what is that grants you legal access to the copyrighted material?
There are two legal principles you are missing:
1) First sale. This means that every lawful copy of a protected work includes the right to its normal use.
2) Use. If you read copyright law, you will see a list of rights that are reserved to the author. Ordinary *use* is not on the list.
If you think about it, it must be this way. Otherwise, I could write a poem, drop a million copies of it from an airplane, and sue everyone who read it.
The GPL simply offers you *additional* rights that otherwise would be reserved to the authors. You need not accept it if you don't wish to, but then you don't get those additional rights.
"Under Anglo-American Law, a contract requires consideration. With the GPL there is no consideration,and hence no contract."
Huh? There is definitely consideration on both sides in the case of the GPL. In exchange for agreeing to offer source code to any derivative works you distribute, you gain the right to create derivative works and distribute the original work (in original or modified form).
We're obviously talking past each other.
You may have missed the "in the first place" part of my question.
A server has to be set up before a client can connect to it. Whoever sets up the server makes the offer. Whoever connects to the server accepts it. I honestly don't see how you can make a coherent contrary argument.
In this case, it's only human actions that matter. You can't say the server accepts the client's offer because this is a guaranteed committed consequence of human actions that have already taken place.
"Even if you are talking about the person who is running the client and the person who is running the server, it's the the person running the client who actually makes an offer (i.e. give the resource at this URL or accept this e-mail and put in the specified box) and it's the person running the server that accepts it."
So where does the client get the URL from in the first place, if not from an offer?
Your argument would make sense if the URLs just appeared in the mind of the client's human operator by divine inspiration. But that's not what happens.
You contradicted your own point. If it's the human beings that make and accept the offers, and it is, then it's the server operator who acts first, making the offer, and the client's operator who acts second, accepting the offer.
You are arguing correctly that the human beings make and accept the offers, but then argue that the offer is accepted before it is made! That's clearly impossible.
"There is no implied-in-fact contract without conduct from both parties from their intention to form a tacit understanding can be inferred."
Any time one party makes an offer to another, and the other accepts the offer, there's at least an implied contract. That's clearly what's happening in the case of mail servers and web servers. These are both offers of service in exchange for certain restrictions on how you can use it that are known and understood by both sides.
We can certainly argue over what those restrictions are how well known and understood they are. But I think it's crazy to argue that I can offer something, you can take that something, and there is no implied contract. It's clear that I don't mean you can do whatever you want. We both understand that.
Even without this rule, it would be legal. Owners of physical devices aren't circumventing anything when they use the devices they own. It's well-settled law that you can't use copyright to cover "magic words" or purely functional mechanisms. See Chamberlain v. Skylink and Lexmark v. Static Controls.
You can use copyright to protect the actual thing you are copyrighting. But you can't use copyright as a lock out to secure a monopoly. You can't own "every way to make an iPhone work with another wireless company" through copyright, only through patent.
I'm curious what your theory is for why it's not just without being fraud. I mean, we all know that force is not just even though it's not fraud. So what is it that makes this unjust?
Spam *is* fraud. When you connect to a mail server, there's an implied contract. When a person offers something under terms everyone knows and understands, taking it while ignoring the terms is fraud.
If you walk into a barbershop, sit down for a haircut, and then the barber asks for $350, it's fraud. He implicitly accepted the contract you offered him by sitting down for a haircut, and then violated its terms by charging you a price you would not have agreed to.
It's the same think if you send an email or a web query and attempt to force an arrangement you *know* the victim would not have agreed to.
"Seriously, though, how can anyone possibly believe this could ever work? The computing world is driven by countless specialist applications, many of them written in-house by small businesses, or just by individuals to solve a specific problem they have. It's pretty obvious that no organisation could possibly whitelist all of this stuff effectively, without having some sort of automated system that every malicious developer in the world could abuse just as easily."
Here's how it will happen:
1) The whitelist will drive people crazy.
2) Someone will come up with a language that is so secure, there's no need to whitelist. This might be Java or a scripting language or some such thing.
3) To get work done, people will disable whitelisting for the language developed in '2'. They'll trust that they can run anything because the language is secure.
4) Vulnerabilities in that language will surface, and web pages will use them to take over people's computers.
And we'll be right back where we started. We'll just have gone through a lot of trouble and our software will run a lot slower.
When I was in college, I learned all the reasons the features on a CPU couldn't be significantly less than 1 micron in size. I also learned that 20Kbps was about the theoretical upper limit for modems.