Re: scope of linux in the corporates...


Floyd L. Davidson wrote:
"David Schwartz" <davids@xxxxxxxxxxxxx> wrote:
Floyd L. Davidson wrote:

That is not what the GPL says, and the GPL applies here because you
have no other way to get the right to create the derivative work in the
first place.

The GNU GPL differentiates between the requirments for copying,
creating a derivative work, and distribution.

There are no requirements for copying (other than accepting the
terms of the license as a whole). There are additional
requirements for identifying modification. And there are
specific requirements for distribution.

That is not true, section 3 says:

You've quoted below where it does *exactly* that.

3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the following:

I suppose you could read that to apply only if you both copy *and*
distribute, but I don't think that's really all that plausible. That

How can it be anything else? It says "and", not "or". The
stated restrictions applies when both "copy" and "distribution"
are operative. You can copy while not distributing, but you
necessarily must copy if you are distributing. The statement is
clear.

It is giving you permission both to copy and to distribute. If your
interpretation were correct, it would be unlawful to copy without
distributing. (What would give you the permission to do so, since
copyright law prohibits it?)

phrase grants you both the right to copy and the right to distribute,
but if you don't comply with its requirements, you don't get either.

It does not say that.

That is the only thing it could say. Otherwise, it would be unlawful to
copy it without distributing it.

All of the things following it basically "accompany" the binary with
the source code. So, as I read it, you may not copy without
accompanying.

So I can't copy it to my laptop, without putting the source on the
laptop? That would be absurd.

You could so long as you destroy your original copy. (Because that
wouldn't really be copying.)

However, if you want to make additional copies, you must comply with
the GPL's requirements, including the "accompany" requirement.
Otherwise, you have only the same rights you would have for a piece of
commercial software you purchased.

At several points. Initially, in the preamble:

"We protect your rights with two steps: (1) copyright the
software, and (2) offer you this license which gives you
legal permission to copy, distribute and/or modify the
software."

Notice that you must comply with the license to get permission to copy.
(Which would be true even if the GPL did not say so.)

Under "TERMS FOR COPYING, DISTRIBUTION AND MODIFICATION"
the title of which clearly distinguishes between the two, in
Section 2 it also clearly distinguishes between modifying your
own copies as opposed to modified copies that are for
distribution.

Huh? We aren't talking about modifying, we are talking about copying
versus distributing. I agree that the license distinguishes modifying
from copying. However, it places precisely the same restrictions on
copying as it does on distributing.

"2. You may modify your copy or copies of the Program or
any portion of it, thus forming a work based on the
Program, and copy and distribute such modifications or work
under the terms of Section 1 above, provided that you also
meet all of these conditions:"

Particularly note that of those conditions, Items (a) and (c)
apply to all of the above, but Item (b) specifies that it
applies (only) to "any work that you distribute or publish".

I don't see how you escape the requirements of section 3 though.

Note also this statement as to the intent of all of the above,

"... the intent is to exercise the right to control the
distribution of derivative or collective works based on the
Program."

It does *not* say it is to control copying, it specifically says it
is to control distribution.

This section is not setting out precise legal requirements. It is
simply describing what the license is intended to do. I don't know if
this paragraph means "distribution" in the technical legal sense or in
a more informal sense. In any event, it doesn't change section 3 which
does set out the precise legal requirements.

pretty carefully and both section 1 and section 2 list copying and
distributing before imposing requirements.

Not copying *or* distributing. Regardless, see above about Item (c)
in Section 2, which clearly applies only to distribution and not to
copying.

What about section 3?

It grants you the right to both copy and distribute. If I said you may
"drive and park my vehicle if you pay me $10 a day", you absolutely
cannot possibly argue that this means you can drive it without paying
me. The reason is simple -- nothing but that statement gives you the
right to drive it, and that statement requires you to pay me.

Because you start out with neither right, an grant with an "and" has to
mean that it is giving you both abilities.

GPL
section 3 only allows you to *make* a copy if you *accompany* it with
source code or a transferrable offer for source code.

Section 3 allows you to *distribute* a copy under specific
conditions. It does not restrict in any way making a copy.

The GPL does not need to restrict the making of a copy because you
*cannot* make a copy to begin with.

The license give you the right to make copies without an restriction.

Why does section 3 not restrict it?

You only have the right to make a
copy if the GPL gives it to you, because copyright law restricts
copying to only the author.

The same applies to distribution. Yet the GPL very specifically
*does* place restrictions on rights granted for distribution.

I agree. The point is, if the "copy and distribute" clause only meant
that you could do both and not either alone, then you could not do
either alone. Nothing would grant you that right.

GPL section 3 grants both the right to copy and the right to distribute
subject to precisely the same "accompany" requirement. Again, here's
what it says:

3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the following:

Notice that it says, "copy and distribute".

Exactly. It does not say "copy or distribute".

Then it is illegal to copy without distributing. (Since by your silly
argument, the GPL does not give you either right alone.)

You are free to make an use copies as you see fit.

Provided you comply with the GPL. If the GPL permitted unrestricted
copying, its restrictions on distributing would be a legal nullity.

That is an absurd statement.

No, it's a legal fact. Distribution can only take place on a physical
medium. If the GPL burdened only distribution and not copying, you
could make copies and send them over the Internet as you wished. The
legal standard for "distributing" would not be met.

(It's complicated to explain why, but trust me, the GPL *has* to impose
the restrictions when you copy.)

Lets just see you try!

I cannot easily do so because the legal issues are complicated, but the
basic idea is that almost anything you can do that would qualify as
"distributing" can be done as "copying". This is why the rights are
almost always granted in pairs. For example, making copies and then
permitting those copies to be transferred electronically is not
"distributing". This is why, for example, radio stations do not need
the right to "distribute" a song they play.

I guess what it would come down to is whether or not the "accompany"
requirement only applies to distribution. I could see reasonable
arguments both ways.

There is no statement about "copy or distribute", only about
"copy and distribute". It applies to distributing a copy, not
to using a copy.

The "and" there means that it grants you both rights. This is a grant
of right, not an imposition of restriction because you start out
without the right to do either.

It does not say "copy or distribute" in relation to the restrictions
cited. It specifically does say

"... the intent is to exercise the right to control the
distribution of derivative or collective works based on the
Program."

This cannot mean distribution in the precise technical sense, it just
means people getting copies of the work. This is not meant to be a
legally precise section, it simply states the motive or purpose of the
license.

Note also (emphasis added),

5. You are not required to accept this License, since you
have not signed it. However, nothing else grants you
permission to *modify* or *distribute* the Program or its
derivative works. These actions are prohibited by law if
you do not accept this License. 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.

Note the lack of any reference to "copying".

It doesn't matter. This paragraph is a legal nullity. It simply tells
you a set of facts that would be equally true whether or not they were
contained in the license. Notice it says that by *modifying* the
program you agree to the terms for *copying* *OR* distributing it?
Again, not that it matters, because this paragraph is just trying to
help you understand the law.

On the other hand, in Section 6 is says (emphasis added),

6. Each time you redistribute the Program (or any work based
on the Program), the recipient automatically receives a
license from the original licensor to *copy*, distribute or
modify the Program subject to these terms and conditions.

Notice the "or" and that copying is clearly made subject to these
conditions. Notice also that this would mean the same thing if the "or"
were changed to an "and". All the rights are granted, which means you
have the right to do any of those things.

If this were not so, the GPL would be a legal nullity. (Again, it's
tricky to explain why, but it has to do with both the technical
definition of "distribute" and first sale rights.)

It is not at all tricky to explain why. You have no right other
than those licensed. It clearly says you can copy and use the
program as you like, but you cannot distribute or modify it
except as described.

What? Where are you getting that from? Section 3 clearly applies to
copying it. If you could copy it all you liked and were only restricted
in distribution or modification, you could offer the binaries from a
web server and not the source code.

"We ... offer you this license which gives you
legal permission to copy, distribute and/or modify the
software."

Each item is distinct, copying, distributing and/or modifying.
Each is specifically allowed. There are additional restrictions
place on distribution and modification, but none on copying for
other purposes (such as use on different computer by the same
owner).

In that case, the GPL would be a legal nullity. You could make copies
without invoking the GPL, and someone else could distribute those
copies (not in the legal sense, but in the sense of give them away)
under first sale rights. But the GPL doesn't say that, and so it
doesn't mean that.

Clearly what allows is the fact that I have gcc installed
(copied to) half a dozen computers... but only ever put the
source code on two of those computers, and in fact have since
deleted it from one of them. A company is also allowed to do
it the same whay I as an individual do.

I honestly don't see why what you have done is compliant with the GPL.
You have copied a covered work and have not accompanied it with either
the source code or an offer for the source code. What do you think
lawfully authorized this copying? (Copyright law specifically restricts
the right to make copies.)

The GPL licensed that right to me. It does *not* require that I
keep the source or said offer on all of my computers. It does
not even require that I ever obtain the source or the said
offer. (Whoever distributed the copy to me has to have offered it,
but I am not required to take it in order to copy the program onto
multiple computers.)

The GPL requires you to accompany the copy with either the source or
the offer. That's what section 3 says.

DS

.

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