Re: scope of linux in the corporates...

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

"The license does not require anyone to accept it in order to
acquire, install, use, inspect, or even experimentally modify
GPL'd software."
Eben Moglen

"You don't need permission to use copyrighted work - there is
no exclusive right to use, unlike in Patent law which
involves the rights to 'make, use or sell'"
Eben Moglen

"Almost everyone who uses GPL'd software from day to day
needs no license, and accepts none. The GPL only obliges you
if you distribute software made from GPL'd code, and only
needs to be accepted when redistribution occurs."
Eben Moglen

Copying without distributing is simply *using* the program.
That includes installing it, archiving it, making backups,
restoring from backups, or just saving an extra copy in a
different directory.

(And it includes copying it to my laptop.)

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.

See above clarifications by Eben Moglen. You are wrong.

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.)

That is absurd. See above comments by Eben Moglen.

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.

See above comments by Eben Moglen.

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.)

It does *not* say that there. And in the place where it does say that,
it says nothing about copying.

"The license does not require anyone to accept it in order to
acquire, install, use, inspect, or even experimentally modify
GPL'd software. ... The free software movement thinks all
those activities are rights, which all users ought to have;
we don't even want to cover those activities by
license. Almost everyone who uses GPL'd software from day to
day needs no license, and accepts none. The GPL only obliges
you if you distribute software made from GPL'd code, and only
needs to be accepted when redistribution occurs."
Eben Moglen

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

If it distinguishes between modifying copies for yourself and for
distribution, then clearly it distinguishes between copying for yourself
and for distribution.

versus distributing. I agree that the license distinguishes modifying
from copying.

That is not what I said.

However, it places precisely the same restrictions on
copying as it does on distributing.

An absurd statement. See above statements by Eben Moglen.

"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.

See statements by Eben Moglen. You are clearly confused about
what it does and does not say and what the license does and does
not do.

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

Exactly. Of course those are "precise legal requirements".

this paragraph means "distribution" in the technical legal sense or in
a more informal sense.

There is no legalese in the GPL. There is no reason to assume
it means something different in one paragraph than it does in
another.

Given what Eben Moglen says it means, in plain English,
what that means is very clear.

In any event, it doesn't change section 3 which
does set out the precise legal requirements.

For copies made when you are distributing the program.

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?

For copies made when you are distributing the program.

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.

The license does not require anyone to accept it in order to
acquire, install, use, inspect, or even experimentally modify
GPL'd software. ... The free software movement thinks all
those activities are rights, which all users ought to have;
we don't even want to cover those activities by
license. Almost everyone who uses GPL'd software from day to
day needs no license, and accepts none. The GPL only obliges
you if you distribute software made from GPL'd code, and only
needs to be accepted when redistribution occurs.
Eben Moglen

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

See above clarification by Eben Moglen.

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.

The license does not require anyone to accept it in order to
acquire, install, use, inspect, or even experimentally modify
GPL'd software. ... Almost everyone who uses GPL'd software
from day to day needs no license, and accepts none. The GPL
only obliges you if you distribute software made from GPL'd
code, and only needs to be accepted when redistribution
occurs.
Eben Moglen

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

See above clarification by Eben Moglen.

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.

Where do you get such absurd ideas? If you "send them over the
Internet", all is just fine and indeed there is no copy... until
someone receives them over the Internet and saves it to a file
on a disk. Bingo. You now have a copy.

If *you* are both the sender and the receiver, there is no
distribution; if you send it to someone else you are engaged in
a distribution.

(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

Eben Moglen claims there is virtually *nothing* complicated about the
issues involved with the GPL. I agree!

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.

They are *not* distributing a copy of the song. On the other
hand, if someone records it from the radio, that is indeed a
"copy". It may or may not be legal. Likewise redistribution
via another broadcast is also a "copy", hence if you play a
radio station on the speaker in an elevator, you are violating
the copyright on all copyrighted material that you do not have a
legal right to. The same applies to playing the music for
customers in a business, for example on a speaker system in a
restaurant. (You _can_ have a radio in the kitchen, for the cook
to listen too...)

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.

There is *nothing* in the GPL that is not a "legally precise section".

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

Where do you get bull*** like "a legal nullity"?

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?

It says no such thing. As noted, there is no reference at all
to copying.

Again, not that it matters, because this paragraph is just trying to
help you understand the law.

Wrong, it is helping the law to understand what the license grants.

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.

That is exactly the grant of a right that you have said several
times is not given. Note also that you are now admitting that
these enumerated items *are* legally binding too. If (6) is
binding, then (5) is too.

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 "or" meant "and", we would not find them using both at
various different points. But we do, because "or" is *not* the
same as "and".

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.

Offering binaries from a web server is clearly a distribution.

Professor Moglen's affidavit also reiterates that the GPL is
based on copyright law ... Users who only use the software
themselves or who modify the software only for their own use
have no obligations under the GPL. Only persons who
distribute have reciprocal obligations under the GPL. These
include the obligation to release under the GPL, to include a
copy of the GPL and to preserve notices relating to the
GPL. Thus, the author of the software gives up his rights to
control the actions of people who receive the software and do
not distribute it, and these people have a unilateral right
to use, copy and modify the software. Once software is
released under the GPL, the releasing party cannot get it
back or halt its use or modification without distribution.
Laura A. Majerus of Fenwick & West LLP
http://library.findlaw.com/2003/Jun/16/132811.html

"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.

When you give them to "someone else", you distribute them.
"Give them away" is, in any sense you want, legal or otherwise,
a distribution and *requires* compliance with the GPL. That is
true whether you make the copy and give it to "someone else", or
whether it is the "someone else".

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.

You have made some of the most abjectly absurd claims I've ever
seen, but this one is the most ridiculous of them all. Until I
saw that I thought you were just seriously mistaken. But that
level of silliness suggests you are trolling. Nobody could be
that... (Could you????)

--
Floyd L. Davidson <http://www.apaflo.com/floyd_davidson>
Ukpeagvik (Barrow, Alaska) floyd@xxxxxxxxxx
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