the only recourse the copyright holder has is to sue for damages.
That's true of all breaches of contract.
the question I have is how does one calculate damages in the case where the copyright holder is charging $0 for the license?
Usually, there won't be any actual damages. But in the case of willful infringement, such as SCO conntinuing to distribute Linux even after it has been informed that it is infringing on the copyright of the authors, statutory damages are available. Someone sent SCO a cease and desist, right?
The only way to get a lawfully made copy of a work under the GPL is to get it from someone who has agreed to the GPL, i.e., who is providing source (or someone who got it from someone who agreed, and so on).
OK, but here's the thing. Once you've made that copy, are you still bound to the terms of the GPL? If so, I'd consider that a contract. I'd also say that that contract requires you to agree to not exercise your right of First Sale.
But the GPL is only supposed to apply to those who make and distribute copies of GPLed software, and in that case, copyright law is all that's necessary.
The GPL applies to anyone who's agreed to it. And "by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it." Obviously the GPL can only apply once you've agreed to it. So obviously it can't take away rights until the point where you exercise rights which it has given you. But once you've agreed to it, it can take away your rights under copyright law, and that's what it does. The GPL requires you to perform future actions in order to receive permission to use the permissions it grants you.
I do believe that if you receive the binaries only (on a CD), you can then sell (but not redistribute) that CD.
Of course you can, at least, as long as you have not agreed to the GPL.
Redistribution (meaning distrbution of a copy) is not a right that is granted to you under First Sale anyway
It most certainly is. "Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
If you own a copy which was lawfully made, you have the right to distribute it without permission of the copyright ownner. The only way the GPL can enforce the requirement to distribute source is by adding restrictions beyond those of copyright law.
You distribute the same "package" of binary + source that you recieved.
So what if you received the source separate from the binary? What if you never received the binary at all (after all, having the binary available at the same FTP site is considered legit). Most importantly, what if you made the binary yourself?
Maybe in theory you can sell your Windows CD without the licence certificate too (then all he needs is a licence, now if he happened to use a warezed key, that's not your problem). In reality, they need to stay together.
Fortunately, not all software is Windows, and not all software requires a license key.
Intellectual property has tangible value; if we wish to create a feasible alternative to capitalism, we must take this into account.
Surely tangible isn't the word you're looking for, is it?
People do not contribute to free software projects with absolutely no expectation of return: in the long term, they may expect money or fame, or they may simply wish to promote an ideology (free software).
Sure, in a society with copyright, it's in your best interests to use it. I'm not arguing with that. I'm not even arguing with copyright in the first place (at least not in this thread). I'm just saying it's a concept which is quite capitalist. Regardless of whether you use copyright to tear down the little guy or the big guy, it's still capitalism. And asserting your property rights to destroy someone else when they aren't even harming you in any way is capitalism at its "finest."
In the proprietary world, there are two extreme: you have the code and you do whatever you want with it, or you don't and you can do nothing except run the binaries.
There are also lots of things in between in the proprietary world. Some of them give you source but don't let you redistribute it. Others give you source and do let you redistribute it. The proprietary world is by no means all or nothing.
Saying that a company ought to face the possibility of going out of business for engaging, intentionally or not, in unethical activities hardly makes me a capitalist.
Calling copyright infringement an unethical activity does, though.
Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
Sure sounds like a promise to me.
Nothing, not even a promise, is required of you until you redistribute.
Nonsense. When you copy, you are required to "conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty." When you create a derivative work, you are required to "cause the modified files to carry prominent notices stating that you changed the files and the date of any change."
Well, as I said in my reply to the other reply to the grandparent post, I haven't promised to do anything, but if I do anything and don't do it under the terms of the license, I'm breaking copyright law, not a contract.
Right. But if you did agree to the GPL, then nyou'd be breaking the GPL, not copyright law.
It's like watching a movie on tape. There's a license at the very beginning of the movie that says it's licensed for home viewing only.
No, that was a failed attempt by the movie industry to regulate use. It's still there merely because it scares some people.
However, if I decide to take my tape to the local multiplex and show it to paying customers, the MPAA can come down on me like a ton of bricks for violating the terms of the license.
No, they can come down on you like a ton of bricks for violating copyright law.
If the courts were to rule that the GPL is an enforceable contract, that'd be OK with me as long as it's enforceable.
Yeah, I guess it's just a matter of terminology. Like I said, the conclusions that groklaw made were correct. However, they didn't get into more complicated situations. For instance, what if I make legal copies of a GPLed product, and then try to redistribute those copies without distributing the source under the First Sale doctrine? If I legally obtained the copies, then I should be able to distribute them under First Sale. But if the GPL is a contract, then I am under obligation not to distribute the copies without distributing the source.
The important difference is what people (or corporate entities) choose to do, vs. what they must do.
I fail to see the importance in the difference. Can I say that I'm not forced to pay taxes, but rather I choose to pay them? What exactly am I forced to do?
What if you intentionally insert your proprietary code into a GPL program and release the binary?
You probably still can't lose your code. You could be charged with damages, but the court would probably consider the loss of your code to be an unconscionable term of the GPL.
You can also opt to stop distributing your product entirely, without releasing the source to it.
And then you still could be sued. You can't breach the GPL, and then stop breaching it, and get away with it, if the copyright holder decides to sue. Generally, they won't. In fact, there's never been a case where they have.
In any case, stopping distribution doesn't necessarily mean that you have to scrap all the code you've written: you can find or write non-GPLed code to replace the troublesome GPLed code.
You could try, but unless you are very careful you could probably still be charged with copying, if your replacement code is too similar (and you haven't adhered to strict clean-room reimplementation).
A better solution would be to create a binary patch.
If this is too big a problem for a company to solve in reasonable enough time to stay in business, then tough: they should've looked at the licences of their components more closely.
Spoken like a true capitalist. You've been taught well.
And the person who receives GPLed code has no obligation toward the original author.
Sure they do. Just because the source doesn't hhave to be given to the copyright holder, that doesn't mean that the obligation isn't to the copyright holder. It is quite common for a contract between two parties to involve that something be given to a third party. For instance, if I order flowers and have them sent to my mother. The obligation to deliver flowers is owed to me, however the recipient of the flowers is my mother.
You would not be obligated to release your source.
You're arguing semantics. You are obligated to release your source. If you fail to comply you will be sued. You aren't forced to release your source, of course.
Ah, yes, that goal. You know, I was going to say that it was impossible, beating Microsoft on its own platform, but then I realized AOL is doing this - twice even. AOL is way more popular than MSN for internet access, and AIM is still more popular than MSN for instant messaging. I guess it is possible to beat Microsoft on its own platform.
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the only recourse the copyright holder has is to sue for damages.
That's true of all breaches of contract.
the question I have is how does one calculate damages in the case where the copyright holder is charging $0 for the license?
Usually, there won't be any actual damages. But in the case of willful infringement, such as SCO conntinuing to distribute Linux even after it has been informed that it is infringing on the copyright of the authors, statutory damages are available. Someone sent SCO a cease and desist, right?
The only way to get a lawfully made copy of a work under the GPL is to get it from someone who has agreed to the GPL, i.e., who is providing source (or someone who got it from someone who agreed, and so on).
OK, but here's the thing. Once you've made that copy, are you still bound to the terms of the GPL? If so, I'd consider that a contract. I'd also say that that contract requires you to agree to not exercise your right of First Sale.
But the GPL is only supposed to apply to those who make and distribute copies of GPLed software, and in that case, copyright law is all that's necessary.
The GPL applies to anyone who's agreed to it. And "by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it." Obviously the GPL can only apply once you've agreed to it. So obviously it can't take away rights until the point where you exercise rights which it has given you. But once you've agreed to it, it can take away your rights under copyright law, and that's what it does. The GPL requires you to perform future actions in order to receive permission to use the permissions it grants you.
I do believe that if you receive the binaries only (on a CD), you can then sell (but not redistribute) that CD.
Of course you can, at least, as long as you have not agreed to the GPL.
Redistribution (meaning distrbution of a copy) is not a right that is granted to you under First Sale anyway
It most certainly is. "Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
If you own a copy which was lawfully made, you have the right to distribute it without permission of the copyright ownner. The only way the GPL can enforce the requirement to distribute source is by adding restrictions beyond those of copyright law.
You distribute the same "package" of binary + source that you recieved.
So what if you received the source separate from the binary? What if you never received the binary at all (after all, having the binary available at the same FTP site is considered legit). Most importantly, what if you made the binary yourself?
Maybe in theory you can sell your Windows CD without the licence certificate too (then all he needs is a licence, now if he happened to use a warezed key, that's not your problem). In reality, they need to stay together.
Fortunately, not all software is Windows, and not all software requires a license key.
Not every presidential candidate was a member of congress at the time the PATRIOT Act was voted upon.
Wow, you're pretty smart! How long did it take you to figure that one out?
Intellectual property has tangible value; if we wish to create a feasible alternative to capitalism, we must take this into account.
Surely tangible isn't the word you're looking for, is it?
People do not contribute to free software projects with absolutely no expectation of return: in the long term, they may expect money or fame, or they may simply wish to promote an ideology (free software).
Sure, in a society with copyright, it's in your best interests to use it. I'm not arguing with that. I'm not even arguing with copyright in the first place (at least not in this thread). I'm just saying it's a concept which is quite capitalist. Regardless of whether you use copyright to tear down the little guy or the big guy, it's still capitalism. And asserting your property rights to destroy someone else when they aren't even harming you in any way is capitalism at its "finest."
In the proprietary world, there are two extreme: you have the code and you do whatever you want with it, or you don't and you can do nothing except run the binaries.
There are also lots of things in between in the proprietary world. Some of them give you source but don't let you redistribute it. Others give you source and do let you redistribute it. The proprietary world is by no means all or nothing.
Saying that a company ought to face the possibility of going out of business for engaging, intentionally or not, in unethical activities hardly makes me a capitalist.
Calling copyright infringement an unethical activity does, though.
Count yourself lucky, not exempt.
I'm not sure how I'm lucky for being unemployed, but OK.
Since EMC itself is on the "short list" for aquisition by Microsoft, this seems less strange but still very interesting.
Buying VMWare as a poison pill. Very interesting.
Sure sounds like a promise to me.
Nothing, not even a promise, is required of you until you redistribute.
Nonsense. When you copy, you are required to "conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty." When you create a derivative work, you are required to "cause the modified files to carry prominent notices stating that you changed the files and the date of any change."
Good point.
When it comes to law, you (the individual) are forced to do what you will go to jail for not doing.
Well, I don't pay income taxes, but I'm not in jail. So I guess I'm not forced to pay taxes.
You're right. I misread it. Merely receiving GPLed code doesn't imply that you've assented to the contract.
Besides, what possible monatery damages could there be to the GPLed project?
Statutory ones.
Well, as I said in my reply to the other reply to the grandparent post, I haven't promised to do anything, but if I do anything and don't do it under the terms of the license, I'm breaking copyright law, not a contract.
Right. But if you did agree to the GPL, then nyou'd be breaking the GPL, not copyright law.
It's like watching a movie on tape. There's a license at the very beginning of the movie that says it's licensed for home viewing only.
No, that was a failed attempt by the movie industry to regulate use. It's still there merely because it scares some people.
However, if I decide to take my tape to the local multiplex and show it to paying customers, the MPAA can come down on me like a ton of bricks for violating the terms of the license.
No, they can come down on you like a ton of bricks for violating copyright law.
If the courts were to rule that the GPL is an enforceable contract, that'd be OK with me as long as it's enforceable.
Yeah, I guess it's just a matter of terminology. Like I said, the conclusions that groklaw made were correct. However, they didn't get into more complicated situations. For instance, what if I make legal copies of a GPLed product, and then try to redistribute those copies without distributing the source under the First Sale doctrine? If I legally obtained the copies, then I should be able to distribute them under First Sale. But if the GPL is a contract, then I am under obligation not to distribute the copies without distributing the source.
Just compiling a "hello world" program would link together several gpl'd libraries would that be considered a derivitive of the original?
Presumably you're talking about the standard libraries? They aren't GPLed.
The important difference is what people (or corporate entities) choose to do, vs. what they must do.
I fail to see the importance in the difference. Can I say that I'm not forced to pay taxes, but rather I choose to pay them? What exactly am I forced to do?
What if you intentionally insert your proprietary code into a GPL program and release the binary?
You probably still can't lose your code. You could be charged with damages, but the court would probably consider the loss of your code to be an unconscionable term of the GPL.
You can also opt to stop distributing your product entirely, without releasing the source to it.
And then you still could be sued. You can't breach the GPL, and then stop breaching it, and get away with it, if the copyright holder decides to sue. Generally, they won't. In fact, there's never been a case where they have.
In any case, stopping distribution doesn't necessarily mean that you have to scrap all the code you've written: you can find or write non-GPLed code to replace the troublesome GPLed code.
You could try, but unless you are very careful you could probably still be charged with copying, if your replacement code is too similar (and you haven't adhered to strict clean-room reimplementation).
A better solution would be to create a binary patch.
If this is too big a problem for a company to solve in reasonable enough time to stay in business, then tough: they should've looked at the licences of their components more closely.
Spoken like a true capitalist. You've been taught well.
Where's the promise on my side?
You promise to distribute source code whenever you distribute the binaries.
I haven't promised to do anything, in fact, so I still don't see how it can be a contract.
If you don't agree to the contract, you don't have to promise to do anything, but it's still a contract, just one you haven't agreed to.
Until then, I'm OK with going with Professor Moglen's interpretation.
Suit yourself. It doesn't really matter anyway, because the conclusions that were made were accurate.
Nope. A contract implies a two-way promise.
And so does the GPL.
A license simply allows you to do something you couldn't otherwise do.
Right. And the GPL does that too. The GPL contains both a license and a contract.
If she says that the General Public License is a LICENSE, not a contract, she has the opinion of experts to back it up with.
More than half of the time lawyers argue a case, they are wrong. Think about that one.
And the person who receives GPLed code has no obligation toward the original author.
Sure they do. Just because the source doesn't hhave to be given to the copyright holder, that doesn't mean that the obligation isn't to the copyright holder. It is quite common for a contract between two parties to involve that something be given to a third party. For instance, if I order flowers and have them sent to my mother. The obligation to deliver flowers is owed to me, however the recipient of the flowers is my mother.
You would not be obligated to release your source.
You're arguing semantics. You are obligated to release your source. If you fail to comply you will be sued. You aren't forced to release your source, of course.
Except for the First Sale right to redistribute binaries without distributing source.
Ah, yes, that goal. You know, I was going to say that it was impossible, beating Microsoft on its own platform, but then I realized AOL is doing this - twice even. AOL is way more popular than MSN for internet access, and AIM is still more popular than MSN for instant messaging. I guess it is possible to beat Microsoft on its own platform.