Whacko Allies are Dangerous [LWN.net]

Whacko Allies are Dangerous

Posted Jan 2, 2003 6:43 UTC (Thu) by ncm (subscriber, #165)
Parent article: Copyright extremists shouldn't control information (Townhall.com)

It is awkward to have people apparently on your side who jeopardize your cause.

If you read Schlafly's column carefully, you find sound arguments culled from our own literature and, alongside them, a wacky proposition that, if enacted, would (among other effects) knock out the teeth of the GPL.

Schlafly couches her proposition in terms of video store owners who are prevented by copyright from bowdlerizing the movies they rent. (Blockbuster does this without telling you, but they are big enough to make the studios permit it.) If, in fact, copyright owners were no longer allowed to control the form of the copies distributed, then people could distribute altered versions of GPLed programs without delivering up source for the changes.

An interesting article about the radical stand taken by the Schlafly contingent (and apparently adopted pragmatically by Prof. Lessig for the Eldred case) may be found at

http://www.law.com/regionals/ca/opinions/stories/edt0313_schultz.shtml

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Try that again, please.

Posted Jan 2, 2003 17:27 UTC (Thu) by marK (guest, #8865) [Link]

How so?

The GPL specifically allows you to take what you have legally obtained and modify it in anyway you wish, including paying someone else to do it. The only stipulation is that you cannot redistrubute without the exact same means of modification being provided. However, if it is just for your own use, you do not need to publish the modifications.

The video stores edit copies their customers have already purchased legally. The customers receive back their modified copies. The video stores do not make and sell edited copies because that would be a clear violation of copyright.

Everyone wins. The studios sell movies to people who would likely not buy them. The people get a movie they aren't embarassed to watch, and the video stores have a little extra cash by providing a service to their customer.

So how is this "...a wacky proposition that, if enacted, would (among other effects) knock out the teeth of the GPL?"

Derivative Works

Posted Jan 2, 2003 19:16 UTC (Thu) by ncm (subscriber, #165) [Link]

Here's the quote from the Schlafly editorial:

Eight Hollywood studios have filed suit against local retailers who buy their videos and DVDs and then [bowdlerize it] at the expense of their customers.

That looks to me like distributing derivative works without permission.

To distribute work derivative of GPL code without permission would be to distribute modifications without the source. If the video retailers were allowed, so would be the proprietary-software thieves. ("Oh, but we only sell our improved programs to people who have a legitimate copy of the GPLed original!")

Derivative Works

Posted Jan 2, 2003 22:07 UTC (Thu) by ronaldcole (guest, #1462) [Link]

Two problems with your argument, here:
* First sale doctrine
* Work for hire
I'm sure you can figure out why.

Derivative Works

Posted Jan 2, 2003 23:34 UTC (Thu) by ncm (subscriber, #165) [Link]

ronaldcole writes, "Two problems with your argument, here: First sale doctrine; Work for hire."

The first-sale doctrine (under the Uniform Commercial Code) allows the store or the customer to use the disc they got. They can play it or turn it into jewelry. It doesn't allow the store to sell a (modified) copy of it. It also doesn't allow them to rent out unauthorized versions. (That's public performance, also restricted under copyright.)

Work-for-hire doesn't create permission for the store to hand over copies of the DVD. That is distributing a derived work without permission. A reasonable test is, are they really doing the work individually for each customer, or did they do it once and are running off copies? Almost certainly the latter; for the other they would have to charge more than anybody would pay.

This work-for-hire argument, applied to the GPL, would allow Exploiters, Inc. to distribute GPLed programs with private changes, and claim that their customers have a license to the original code, and just "hired" Exploiters, Inc. to install the proprietary changes.

The DMCA adds just one wrinkle: to make the bowdlerized copy, they also have to crack CSS. It's easier to sue them for that violation than to explain to the jury the interaction between (regular) copyright publication and work-for-hire.

Derivative Works

Posted Jan 3, 2003 4:58 UTC (Fri) by busterb (subscriber, #560) [Link]

So, the store can turn it into jewelry, but cannot modify it? What if the store
sells jewelry made from copyrighted DVDs? I can buy a clock right now made
from a copyrighted CD. What is the difference, as long as I know that the
original work has been modified.

Maybe there are special exceptions to intangible property, but I kind of see
her point. Having the first-sale doctrine, while claiming that one cannot sell a
modified version of only certain types of goods is a double standard. What
about value-added resellers? Why can I buy a modified car, a modified stereo,
a customized house, but not modified music or software?

Derivative Works

Posted Jan 3, 2003 8:41 UTC (Fri) by ncm (subscriber, #165) [Link]

This isn't rocket science. When you buy the DVD, you own the DVD. That's the physical disc, the plastic thing. Your right to distribute copies of the bits on it are governed by copyright, fair use, and first sale (UCC).

UCC says that since they sold you a movie, you can at least copy the bits through your equipment to get it to the screen. It says you can sell it to somebody else. Fair use says you can make a backup copy, make a copy for a friend, or publish excerpts (but the DMCA says you can't decrypt it to do that). Nothing says the store can distribute copies, modified or not, without permission from the owner of the bits. That's publication.

Who's distributing?

Posted Jan 3, 2003 17:35 UTC (Fri) by marK (guest, #8865) [Link]

The video stores are taking the customer's previously purchased copies and modifying them for a fee, and returning them to the same customers.

How is that different from them taking a customer's DVD or CD and for a fee, converting it into jewelry for that customer. The stores are not stocking modified copies. The stores are not taking blank tapes, slapping reproduced labels on them, and copying modified versions of the movie on them. They are using their professional equipment to cut and splice legally purchased tapes for the owners of said tapes and charging a fee for the service.

I repeat, "How does that gut the GPL?"