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The "Death Penalty"...The "Death Penalty"...Posted Mar 23, 2012 14:29 UTC (Fri) by khim (subscriber, #9252)In reply to: The "Death Penalty"... by mjg59 Parent article: Enforcing the GPL with Judo moves (The H)
In the beginning. Sure, GPL says Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. but then it continues: The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does. This means that even in jurisdictions where you need license to run the program you have explicit grant. Of course these two sentences contradict each other so it's not at all clear if you can still run the GPL program if you've violated the GPL. GPLv3 clarifies this stance: it removes useless “outside its scope” message and only keeps This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work.
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The "Death Penalty"... Posted Mar 23, 2012 20:30 UTC (Fri) by rqosa (subscriber, #24136) [Link] > GPLv3 clarifies this stance: it removes useless “outside its scope” message It doesn't actually matter whether the license text has the “outside its scope” message or not — the license can only grant permission for things that would not be allowed by default under copyright (a.k.a. "all right reserved"), and thus cannot remove permission for things that aren't within the scope of copyright law in the first place.
The "Death Penalty"... Posted Mar 23, 2012 21:28 UTC (Fri) by khim (subscriber, #9252) [Link] It doesn't actually matter whether the license text has the “outside its scope” message or not — the license can only grant permission for things that would not be allowed by default under copyright (a.k.a. "all right reserved"), and thus cannot remove permission for things that aren't within the scope of copyright law in the first place. Use of program is within scope of the copyright law (because it involves creation of additional copies in memory) and different jurisdictions don't necessarily agree on the exact terms for when you can do that.
The "Death Penalty"... Posted Mar 23, 2012 22:08 UTC (Fri) by rqosa (subscriber, #24136) [Link] > Use of program is within scope of the copyright law (because it involves creation of additional copies in memory) The in-memory copy shouldn't count as a "copy" for the purposes of copyright law — it's ephemeral in the extreme (it goes away as soon as the RAM chips are powered off) and it can't be distributed to anyone else (to do that, you'd have to give your whole computer to someone else without even turning the power off). And furthermore, such an overly-broad interpretation of copyright law is against the interest of the FLOSS community and the public at large, because it would make it illegal for people to things such as: backing up hard drive contents to prevent data loss; ripping audio CDs (even when not distributing the ripped data to other people); converting recordings on obsolete media formats (such as VHS, Laserdisc, floppy diskettes, "enhanced CDs" from the 1990s designed for Windows 3.x or MacOS Classic and using ancient video codecs, etc.) into formats usable on modern equipment (and if no one does this sort of conversion, then it's very likely that the old works in question will be lost forever); etc. I'm sure that the likes of the RIAA, MPAA, and BSA would love for the courts to use this interpretation of copyright, which is all the more reason for the FLOSS community to resist it.
The "Death Penalty"... Posted Mar 23, 2012 22:34 UTC (Fri) by khim (subscriber, #9252) [Link] The in-memory copy shouldn't count as a "copy" for the purposes of copyright law — it's ephemeral in the extreme (it goes away as soon as the RAM chips are powered off) and it can't be distributed to anyone else (to do that, you'd have to give your whole computer to someone else without even turning the power off). Both sentences are not necessarily true. Copy may be put on HDD or SSD (think hybernate). And in this form it's trivial to distribute it to someone else. Think shared Network hard drive: a lot of users can share a single drive, but only ones with proper license can run it! And furthermore, such an overly-broad interpretation of copyright law is against the interest of the FLOSS community and the public at large, This call is not ours to make. Because it would make it illegal for people to things such as: backing up hard drive contents to prevent data loss; ripping audio CDs (even when not distributing the ripped data to other people); converting recordings on obsolete media formats (such as VHS, Laserdisc, floppy diskettes, "enhanced CDs" from the 1990s designed for Windows 3.x or MacOS Classic and using ancient video codecs, etc.) into formats usable on modern equipment (and if no one does this sort of conversion, then it's very likely that the old works in question will be lost forever); etc. Yes, this is a problem. That's why such activity is explicitly permitted in copyright law. Any lawful owner can do aforementioned things even is the license does not explicitly gives such permission. Yet s/he must be lawful owner first. I'm sure that the likes of the RIAA, MPAA, and BSA would love for the courts to use this interpretation of copyright, which is all the more reason for the FLOSS community to resist it. As I've already said: it's not our call to make. This is already well-established part of copyright law. The only question is what activities must be permitted without explicit grant in license.
The "Death Penalty"... Posted Mar 23, 2012 23:19 UTC (Fri) by rqosa (subscriber, #24136) [Link] > And in this form it's trivial to distribute it to someone else. That is not the in-memory copy itself — it's a copy of the in-memory copy. And, as you said yourself, people are in some cases allowed to make copies of works without permission from the copyright holder if they don't distribute those copies to others (e.g. "backups" or "archival copies"). To state it a different way: you seem to be saying that archival copies of copyrighted works are allowed under fair use, but in-memory copies are not allowed even though they're much more difficult to actually distribute to other people than (for example) a hard drive backup stored on DVD-Rs. Can you cite case law to support that assertion? I don't see any reason why an in-memory copy should not qualify as (a special case of) an "archival copy" under the law. What's more, the principle of "in-memory copies" doesn't apply only to software, nor does it apply only to computers. For example, playing an audio CD involves copying chunks of data from the disc into a circular buffer in memory, and then copying data out of the circular buffer into the PCM playback device. One can take this line of reasoning even further and conclude that the act of reading a book involves making copies of the text in one's brain — because a person might be able to repeat verbatim whole sentences that they read recently. Therefore, your assertion that the act of making in-memory copies is illegal without permission from the copyright holder logically implies that it's illegal to read a book (or a flyer posted in a public place, or any other written materials) without explicit permission from its author. > This call is not ours to make. Then whose is it? If we don't take action to make that call, it will likely be made for us by the MPAA et al. In other words: the public at large shouldn't just automatically accept whatever interpretation of copyright law that the courts are currently using regardless for whether it serves the public interest or not. Instead, the public has a duty to stand up for its own interests. > That's why such activity is explicitly permitted in copyright law. But the MPAA et al. are doing everything they can to change the law so it's no longer permitted (and in general, trying to expand copyright from being only what its name implies into a broader "use-right"). For example, the "anti-circumvention" provisions of the DMCA are intended to illegalize making "archival copies" of CSS-ified video DVDs.
The "Death Penalty"... Posted Mar 23, 2012 23:48 UTC (Fri) by khim (subscriber, #9252) [Link] To state it a different way: you seem to be saying that archival copies of copyrighted works are allowed under fair use, but in-memory copies are not allowed even though they're much more difficult to actually distribute to other people than (for example) a hard drive backup stored on DVD-Rs. I gave link. Both are explicitly allowed if you are lawful owner of a copy. §117 · Limitations on exclusive rights: Computer programs. What's more, the principle of "in-memory copies" doesn't apply only to software, nor does it apply only to computers. Of course. For example, playing an audio CD involves copying chunks of data from the disc into a circular buffer in memory, and then copying data out of the circular buffer into the PCM playback device. Why are you talking about audio CD? Have you looked on the definition of “copy”? §101 · Definitions: The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. As you can guess from the very definition audio CD is totally different object from data CD as far as copyright law is concerned. One can take this line of reasoning even further and conclude that the act of reading a book involves making copies of the text in one's brain — because a person might be able to repeat verbatim whole sentences that they read recently. Bingo! That's why you are not allowed to do this if you don't own the copy in question (there are some exceptions WRT “blind or other handicapped persons who are unable to read normal printed material as a result of their handicap”). Therefore, your assertion that the act of making in-memory copies is illegal without permission from the copyright holder logically implies that it's illegal to read a book (or a flyer posted in a public place, or any other written materials) without explicit permission from its author. No, it's the case of implied license. Copying to computer memory was interpreted as implied license too till it was explicitly added to law. Then whose is it? If we don't take action to make that call, it will likely be made for us by the MPAA et al. s/will likely be made/was made/ Copyright is not limited to a single phrase Congress shall have the power to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Congress actually have used said power many, many, MANY times and by now copyright law is quite large body of definitions and rules. In other words: the public at large shouldn't just automatically accept whatever interpretation of copyright law that the courts are currently using regardless for whether it serves the public interest or not. Instead, the public has a duty to stand up for its own interests. Public has no such [direct] power. Congress does. But the MPAA et al. are doing everything they can to change the law so it's no longer permitted (and in general, trying to expand copyright from being only what its name implies into a broader "use-right"). For example, the "anti-circumvention" provisions of the DMCA are intended to illegalize making "archival copies" of CSS-ified video DVDs. Sure. But the proper response is not to lament your fate on forums but to push back where and when it makes sense. That's how PIPA and SOPA were pushed back. By the time something is added to law it's too late. Dura lex sed lex.
The "Death Penalty"... Posted Mar 23, 2012 23:54 UTC (Fri) by khim (subscriber, #9252) [Link] Wrong cite, sorry.Have you looked on the definition of “copy”? §101 · Definitions: The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.should be: Have you looked on the definition of “copy”? §101 · Definitions: “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. Phonorecords are dicsussed separately - including the very first one. That's why right to publish DVD with a movie does not give you the right to sell CDs or MP3s with soundtracks!
The "Death Penalty"... Posted Mar 24, 2012 1:23 UTC (Sat) by rqosa (subscriber, #24136) [Link] > Both are explicitly allowed if you are lawful owner of a copy. If so, then what I said to start with is true: any license grant for software (such as the GPL) cannot revoke the right to run the software, because that right is guaranteed by copyright law and therefore doesn't require permission from the copyright holder. You're probably going to try to refute that by saying something like this: "copyright law only grants that right if you are the lawful owner of a copy, and if you've violated the GPL, you're no longer the lawful owner of the copy". But where does the law say that? For example, consider the following scenario: I own a HDD, and I downloaded a GPLed program onto it from a web server whose owner has permission to make copies of the program (because they obey the terms of the GPL). Therefore, I am the legal owner of the copy on my HDD, and therefore I have the §117 rights over it, regardless of whether I obey the GPL or not. > As you can guess from the very definition audio CD is totally different object from data CD as far as copyright law is concerned. I see that the law has special cases for "phonorecords" (in particular, the "compulsory licensing" regime defined by §115), but I don't see how that makes any difference with regard to ephemeral in-memory copies that are a necessary part of playing back digital audio data. (Furthermore, the distinction between audio and data CDs isn't totally clear. What about PC video games on CD-ROM that have music in Red Book audio tracks? Also, what about USB flash drives containing music that are distributed by record companies and sold through record stores?) > you are not allowed to do this if you don't own the copy in question "Not allowed to do" what, exactly? Read the book at all? So you're saying that the act of reading books in a bookstore is copyright violation? I can believe that it's trespassing (if the bookstore owner chooses to not allow it), and maybe also vandalism (in cases of removing shrinkwrap from shrinkwrapped books, or similar), but copyright violation? I won't believe that unless you cite legal precedent. (I've even seen some bookstores that have a few chairs around, meant for people to sit in while sampling books in the store.) > s/will likely be made/was made/ What change to the law are you talking about here? Do you mean the explicit rights in §117? As I said above, those are the opposite of what "IP-Maximalists" would like the law to be. Or are you talking about the DMCA's anti-circumvention measures? In that case, we shouldn't just give up and accept them. > By the time something is added to law it's too late. No it isn't. It's never too late, if public opinion is strong enough.
The "Death Penalty"... Posted Mar 24, 2012 8:25 UTC (Sat) by khim (subscriber, #9252) [Link] If so, then what I said to start with is true: any license grant for software (such as the GPL) cannot revoke the right to run the software, because that right is guaranteed by copyright law and therefore doesn't require permission from the copyright holder. It still does in many cases. If your violated the GPL (and thus forfeited your rights under it) and then later you downloaded copy from another server then you are not rightful owner (that particular copy was made without permission) and thus this exception does not apply. For example, consider the following scenario: I own a HDD, and I downloaded a GPLed program onto it from a web server whose owner has permission to make copies of the program (because they obey the terms of the GPL). Owner has a right to send copy to you, yet you have no right to copy it on your HDD. This is most defenitely not a ephemeral copy or anything like that. What about PC video games on CD-ROM that have music in Red Book audio tracks? What about them? You are permitted to distribute different things in the same sale. For example you can sell computer and OS for it. It does not mean sale of computer and OS are governed by the same law. So you're saying that the act of reading books in a bookstore is copyright violation? If you read it from cover to cover? Yes, it's probably copyright violation (although unlikely to be pursued in court). If you just read it to see if you want to buy it or not then it's most definitely “fair use” (law puts emphasis on “the effect of the use upon the potential market for or value of the copyrighted work” and as B&N shows the ability to read book excerpts in store positively affects sales). Bookstore can even explicitly make it legal to read book from cover to cover by deciding that it's not just a bookstore but a library which occasionally sell “excess” books. Since it's very hard to prove that this is copyright violation (store and copyright owner must cooperate to prove creation of a single incomplete unlicensed copy? come on: be real, will you!), people are still doing that, but it does not mean this behavior is legal. I won't believe that unless you cite legal precedent. Not all illegal behaviors are prosecuted, sorry. For example jaywalking is illegal but how often you actually see it enforced in court? Sometimes it's just not worth it. Do you mean the explicit rights in §117? Yes. As I said above, those are the opposite of what "IP-Maximalists" would like the law to be. Not exactly. Sure, these special exceptions made it quite explicit that you can run the program if you are rightful owner. But. The mere existence of these exceptions means that otherwise it'll be illegal to create similar copies. For example it's illegal to download and use program without an appropriate license. No it isn't. It's never too late, if public opinion is strong enough. If something is written in law then it's often very hard to change that. You need enormous push-back - and the way to organize it is not to whine on LWN.
The "Death Penalty"... Posted Mar 24, 2012 20:20 UTC (Sat) by rqosa (subscriber, #24136) [Link] > If your violated the GPL (and thus forfeited your rights under it) …then the software in question is effectively (for you) under "all rights reserved" conditions. And, like I said here, §117 applies to all programs regardless of license terms, even to ones under "all rights reserved" conditions. > and then later you downloaded copy from another server then you are not rightful owner (that particular copy was made without permission) That depends on who made the copy. In the case of downloads, I believe that it's the owner of the download server who is the one who made the copy, not the person who downloaded it. (ISTR that the EFF has made a similar argument about pirated music, saying that the only people guilty of copyright infringement in that situation are the owners of the network host(s) from which the files were downloaded/uploaded.) Therefore, the copy was made with permission, because the server owner (who obeys the terms of the GPL) has permission to make copies and distribute them. > Owner has a right to send copy to you, yet you have no right to copy it on your HDD. According to §117, you do have the right to do exactly that, even in the most restrictive case (i.e. when the software's copyright license terms are "all rights reserved" or no license at all). > This is most defenitely not a ephemeral copy or anything like that. It falls under either case 1 ("a new copy […] created as an essential step in the utilization of the computer program" — e.g. extracting files from a package archive, like what happens when when you run "dpkg -i some_package.deb") or case 2 ("new copy […] for archival purposes only" — e.g. when aptitude saves a downloaded package file to the /var/cache/apt/archives directory) of §117. Therefore, you can legally do this without permission from the copyright holder. > If you read it from cover to cover? Yes, it's probably copyright violation Again, I won't believe that unless you cite evidence supporting that assertion. It was not the original intended purpose of copyright to make it illegal to read a book without permission from its author — rather, the purpose was to make it illegal to print more copies of the book without permission from its author. > > As I said above, those are the opposite of what "IP-Maximalists" would like the law to be. > Not exactly. Why not? I can just imagine that the BSA would love to get rid of §117 and then establish legal precedent that the act of making an in-memory ephemeral copy of a program in order to run it does require permission from the copyright holder (contrary to §117's explicit exemption). > For example it's illegal to download and use program without an appropriate license. That isn't illegal in and of itself. For example, consider this scenario: I am the copyright holder of a program, I put it on my public website together with a copyright notice saying "all rights reserved", and then people download it and run it. Those people have no explicit permission from me to do that (because it's "all rights reserved"), but according to §117, they don't need any. But if they then put the program up on their own servers for others to download, I can sue them for copyright infringement. (And this isn't just a theoretical scenario either, because there are certain pieces of "freeware" which are distributed in this way. For example, "The ROMs on these pages have been approved for free distribution on this site only. Just because they are available here for download does not entitle you to put them on your own site".)
The "Death Penalty"... Posted Mar 25, 2012 9:02 UTC (Sun) by khim (subscriber, #9252) [Link] In the case of downloads, I believe that it's the owner of the download server who is the one who made the copy, not the person who downloaded it. Are you cretin or just play one on TV? Try this for size: - Your Honour, I'm not guilty of any wrongdoing. The copy or MS Windows (MS Office, Adobe Photoshop, etc) was on ftp.xxx.yyy and I've just downloaded and used it. I don't need any license for that. Can you imagine this dialogue in any court anywhere in the world? If no then why do you think this exact dialogue should save GPL violators? ISTR that the EFF has made a similar argument about pirated music, saying that the only people guilty of copyright infringement in that situation are the owners of the network host(s) from which the files were downloaded/uploaded. This is novel interpretation to me. Citation needed. I'm pretty sure they talked about the fact that the people which downloaded music assumed they have implied license and about the fact that someone who does not know he's infringer can not be made to pay $100'000 penalty per copy. If someone infringed GPL and then decided to go download and use new copy then s/he knows full well what s/he's doing and does not deserve any such leniency. For example, consider this scenario: I am the copyright holder of a program, I put it on my public website together with a copyright notice saying "all rights reserved", and then people download it and run it. Companies do it all the time with updates. You can only download and use them if paid for the original. Otherwise it's considered piracy and can be prosecuted in court. This actually happens from time to time. Those people have no explicit permission from me to do that (because it's "all rights reserved"), but according to §117, they don't need any. This asinine theory was never tested in court and doubt it'll ever will be. There are plenty of warez sites where you can download commercial proprietary software. People who did that end up in court and are fined regularly and §117 does not save them. And this isn't just a theoretical scenario either, because there are certain pieces of "freeware" which are distributed in this way. For example, "The ROMs on these pages have been approved for free distribution on this site only. Just because they are available here for download does not entitle you to put them on your own site". You forgot the other part: Thanks to the generosity of some of the original creators of the classic games that MAME® can emulate, several games have been released for free, non-commercial use. These two sentences form a license. It may not look like 100-pages commercial licenses, but it's license nonetheless.
The "Death Penalty"... Posted Mar 25, 2012 11:16 UTC (Sun) by anselm (subscriber, #2796) [Link] Can you imagine this dialogue in any court anywhere in the world? It may come as a surprise to you but this is exactly how things used to work here in Germany. The music and film industry, understandably, didn't like this a lot and spent much effort trying to trick people into believing that downloading was illegal when in fact it wasn't. The law was recently adjusted to forbid downloading stuff from »obviously illegal sources« but this still leaves room for interpretation. Things aren't that clear-cut. Generally, hereabouts they won't try to get you for downloading stuff – they'll try to get you for uploading stuff for others to download, which is more definitely forbidden. This may bite you if you use things like BitTorrent, which will make your downloaded stuff available to others.
The "Death Penalty"... Posted Mar 25, 2012 12:17 UTC (Sun) by khim (subscriber, #9252) [Link] It may come as a surprise to you but this is exactly how things used to work here in Germany. WRT programs? I doubt it. US will add any such country to the list of rogue states, because it'll mean that it's basically impossible for BSA (and other similar organizations) to wrestle any money from infringing users. Generally, hereabouts they won't try to get you for downloading stuff – they'll try to get you for uploading stuff for others to download, which is more definitely forbidden. You are mixing issues again. When programs are involved they want to squeeze money from the users directly - and this is only possible if you can not legally use a program downloaded from shady source. This, in turn, means that any country where by some trick of law it'll be found that you can download and use program without looking on any license will just need to fix the law to make it illegal. Movies and music are treated very differently because of difference in prices and usage patterns: legal copy of a song is dollar or two and legal copy of a movie is usually less then hundred and there are no groups of people where you can fine hundreds of them in a one fell swop thus it makes little sense to go after downloaders, you need to go after uploaders to justify the expenses. With programs situation is different: price of a single program can go to tens of thousands of dollars easily and there are many groups of people where you sue lots of infringers simultaneously thus defense “I've just downloaded the program and was sure it's legal” is rejected out of hand: it'll jeopardize the whole industry.
The "Death Penalty"... Posted Mar 25, 2012 23:45 UTC (Sun) by rqosa (subscriber, #24136) [Link] > US will add any such country to the list of rogue states, because it'll mean that it's basically impossible for BSA (and other similar organizations) to wrestle any money from infringing users. Assuming that's true, you seem to be saying that the public and the FLOSS community ought to just accept this state of affairs rather than fight against it. That sounds more like what that someone from the proprietary software industry would say than what a FLOSS developer would say. > When programs are involved they want to squeeze money from the users directly - and this is only possible if you can not legally use a program downloaded from shady source. This, in turn, means that any country where by some trick of law it'll be found that you can download and use program without looking on any license will just need to fix the law to make it illegal. In other words: it doesn't matter what copyright law currently is, because the BSA (and other similar organizations) will change it to whatever serves their interests. And you seem to be saying that not only is that true, it's also a good thing. But if it's true that they always get their way, then FLOSS is a lost cause, because those organizations have already tried to stamp out "copyleft"-style licensing. So the FLOSS community needs to push back against the IP-maximalists, if it wants to survive. And fortunately, they don't always get their way, as SOPA/PIPA have shown.
The "Death Penalty"... Posted Mar 26, 2012 7:16 UTC (Mon) by khim (subscriber, #9252) [Link] In other words: it doesn't matter what copyright law currently is, because the BSA (and other similar organizations) will change it to whatever serves their interests. And you seem to be saying that not only is that true, it's also a good thing. That's obvious and I don't want to discuss if it's good thing or bad: that's just fact of life. But if it's true that they always get their way, then FLOSS is a lost cause, because those organizations have already tried to stamp out "copyleft"-style licensing. So the FLOSS community needs to push back against the IP-maximalists, if it wants to survive. And fortunately, they don't always get their way, as SOPA/PIPA have shown. The FOSS community can only hope to win if general public perceives penalty as “unfair”. And I doubt you'll manage to convince Joe Average that it should be legal to download and use Windows for free from some warez site. This battle is as much about perceptions as it's about the law: people opposed PIPA/SOPA not because they felt these bills are unfair (most protesters never even read the proposals) but because they threatened to make some thing which Joe Average takes for granted unavailable (blog comment sections, wikipedia and so on).
The "Death Penalty"... Posted Mar 26, 2012 19:37 UTC (Mon) by rqosa (subscriber, #24136) [Link] > And I doubt you'll manage to convince Joe Average that it should be legal to download and use Windows for free from some warez site. Even if that's true, it's still true that whether copyright infringement occurred here or not depends only on one thing: the site owner having permission to make and distribute the copy. Now suppose that the software downloaded was not an unauthorized copy of Windows, but instead was something (e.g. a GPLed program) that the site owner had permission from the copyright holder to distribute (e.g. because the site owner obeys the terms of the GPL). Then it's perfectly clear that no copyright infringement (by either the site owner or the person who downloaded) occurred as a consequence of the download, and also that the person who downloaded the copy of the software has §117 rights over that copy.
The "Death Penalty"... Posted Mar 26, 2012 19:49 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
what if the situation isn't downloadign from a 'warez' site, but instead downloading it from a site that claims to be giving it to you at no cost in exchange for something else (subscription to something, participation in some test or survey, etc)
it's not always obvious if the person offering the download is allowed to or not.
The "Death Penalty"... Posted Mar 26, 2012 20:05 UTC (Mon) by khim (subscriber, #9252) [Link] it's not always obvious if the person offering the download is allowed to or not. Well, files keygen.exe and crack.exe are usual giveaway. But yes, if you can prove that you honestly believed that you are getting licensed software then court will be more lenient. If you'll try to use crazy §117-based defense schemes it'll most likely be perceived as insult and your hopes for leniency evaporate.
The "Death Penalty"... Posted Mar 26, 2012 20:00 UTC (Mon) by khim (subscriber, #9252) [Link] Now suppose that the software downloaded was not an unauthorized copy of Windows, but instead was something (e.g. a GPLed program) that the site owner had permission from the copyright holder to distribute (e.g. because the site owner obeys the terms of the GPL). Then it's perfectly clear that no copyright infringement (by either the site owner or the person who downloaded) occurred as a consequence of the download, and also that the person who downloaded the copy of the software has §117 rights over that copy. This is only true if you have the right to create copy of data sent to you from server on the HDD - and this is not obvious. Usually you can rely on the implied license but if you know that you forfeited your rights under the only known license (GPL) then it's not clear if you should expect to get implied license, too. Even if that's true, it's still true that whether copyright infringement occurred here or not depends only on one thing: the site owner having permission to make and distribute the copy. As you yourself shown it's only true if it's not obvious to you that you are copyright violator. It's of course obvious for the someone who violated GPL, lost the rights granted by it and now is trying to use §117 as fig leaf that he's not dealing with the case of normal downloading. In fact it's easy to build the whole GPL-circumvention scheme using your loophope (if it were real): don't install firmware with GPL components on the factory from the in-factory server. Instead ask your Chinese supplier to put it on ftp, download it from there each time and use §117 to avoid all GPL problems. Chinese supplier will of course send GPL complains where they belong (to /dev/null) and US company is in the clear because of §117.
The "Death Penalty"... Posted Mar 26, 2012 20:53 UTC (Mon) by rqosa (subscriber, #24136) [Link] > This is only true if you have the right to create copy of data sent to you from server on the HDD - and this is not obvious. But it is obvious — you were sent a copy by someone who had permission to do so, therefore you have the §117 rights over that copy. > > […] whether copyright infringement occurred here or not depends only on one thing: the site owner having permission to make and distribute the copy. > […] it's only true if it's not obvious to you that you are copyright violator. Wrong. Whether or not you previously infringed the copyright is irrelevant as to whether this particular act of downloading was a copyright infringement. (Though in some special cases it could be relevant, such as if the license terms applying to the site owner were something to the effect of "you can distribute the software to some people, but not these people" — but no FLOSS licenses contain such conditions.) > In fact it's easy to build the whole GPL-circumvention scheme using your loophope (if it were real): don't install firmware with GPL components on the factory from the in-factory server. Instead ask your Chinese supplier to put it on ftp, download it from there each time and use §117 to avoid all GPL problems. Chinese supplier will of course send GPL complains where they belong (to /dev/null) and US company is in the clear because of §117. What you're missing here is that the courts would simply ban the import of the infringing firmware. And even if they didn't do so, there would be no need for the US company to invoke §117 — instead, they'd just outsource the manufacturing of the firmware-containing device to China. (They're probably already doing that anyway.) Also, in order for the US company to do what you're describing, they would need to invoke more than just §117, but also the "first sale" right (that is, the right to resell the "original copy" of the firmware they received from the Chinese supplier). Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software?
The "Death Penalty"... Posted Mar 26, 2012 21:28 UTC (Mon) by khim (subscriber, #9252) [Link] What you're missing here is that the courts would simply ban the import of the infringing firmware. What infringing firmware? If your insane theory is correct then it's perfectly legal firmware. Chinese guys only need to deliver sources to US company which it turn does not need any license at all (and can just throw delivered sources away without checking that they actually contain anything related to the firmware blob). And even if they didn't do so, there would be no need for the US company to invoke §117 — instead, they'd just outsource the manufacturing of the firmware-containing device to China. (They're probably already doing that anyway.) Right. But now they receive firmware which violates someone's copyright. With this twist they will have perfectly legal firmware. Also, in order for the US company to do what you're describing, they would need to invoke more than just §117, but also the "first sale" right (that is, the right to resell the "original copy" of the firmware they received from the Chinese supplier). Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software? Why wouldn't they? Psystar went down in flames not because it resold MacOS, but because it violated it's license which expressly forbid installation on non-Apple hardware. GPL does not have any such restrictions.
The "Death Penalty"... Posted Mar 26, 2012 22:04 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
> Psystar went down in flames not because it resold MacOS, but because it violated it's license which expressly forbid installation on non-Apple hardware.
From what I saw of the lawsuit, they lost because even though they purchased many copies of OS/X, they didn't install from all of those copies and instead had a single "master server" that installed multiple copies from one image. From what I read, if they had instead opened every box and installed from the individual media they would not have been shot down in flames (they may not able to afford the labor to do things this way, but they would have been legal)
This completely ignores standard industry practice of buying many copies of software and then automating the installation from one copy, but that's what Apple convinced the Judge the law said.
> Right. But now they receive firmware which violates someone's copyright. With this twist they will have perfectly legal firmware.
It's not a matter of the firmware being legal, it's a matter of who is liable for the infringement.
With this twist, someone going after the US company would be told "we acted in good faith, here is the company we got this from, go after them", then the lawsuit would have to go after that company, and if the Chinese government chooses to not do anything, the next response is to block the import of the devices
This shifts things around, and may make it a little harder on the person bringing the lawsuit, but it's not a 'get out of jail free' card that invalidates the copyright.
The "Death Penalty"... Posted Mar 26, 2012 23:09 UTC (Mon) by rqosa (subscriber, #24136) [Link] > From what I read, if they had instead opened every box and installed from the individual media they would not have been shot down in flames (they may not able to afford the labor to do things this way, but they would have been legal) Or maybe, they would have needed to not install the OS at all, but instead only bundle the installation discs along with the hardware. Because §117 doesn't seem to allow you to send copies that you made to other people: Adaptations so prepared may be transferred only with the authorization of the copyright owner. (And there's also the separate issues of breach-of-contract and violation of the DMCA anti-circumvention law, which were also part of Apple's claims.)
The "Death Penalty"... Posted Mar 26, 2012 22:50 UTC (Mon) by rqosa (subscriber, #24136) [Link] > it's perfectly legal firmware. Chinese guys only need to deliver sources to US company First of all, you said that "Chinese supplier will of course send GPL complains where they belong (to /dev/null)". How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? Secondly, in the case that the US company actually did receive the firmware source code from the Chinese supplier, why wouldn't they simply forward it to their customers, instead of contesting the issue in court? Thirdly, if the US company did try to invoke first-sale rights, they'd need to send the unmodified "original copy" to the customer. (Either the "original copy" contains source or it doesn't. If it doesn't contain the source, then the Chinese supplier infringed the copyright and the courts will ban importing from them. If it does contain the source, then the customer received the source and no infringement happened.) And finally, it seems unclear at best whether first-sale rights apply at all to software (or any other copyrighted works) distributed by download (instead of by physical media). > > Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software? > Why wouldn't they? Because it's unclear what the "original copy" is in the case of downloads. For works distributed on physical media (optical discs, printed books, etc.) it's obvious what the original copy is: it's the physical item the buyer received from the seller. For a downloaded file, though, what physical item is the original copy? If you initially downloaded it onto your HDD, then does that mean that your HDD is the "original copy"? Or maybe the "original copy" is actually the RAM used by your NIC device, in which case there's no way that you can send it to someone else. (And according to §117, you are not allowed to send any copies you made, e.g. "archival copies", to other people, unless the copyright holder gives you permission.)
The "Death Penalty"... Posted Mar 27, 2012 7:19 UTC (Tue) by khim (subscriber, #9252) [Link] First of all, you said that "Chinese supplier will of course send GPL complains where they belong (to /dev/null)". How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? Because they want to actually hack on their own code? You know: exercise rights GPL was supposed to protect. Secondly, in the case that the US company actually did receive the firmware source code from the Chinese supplier, why wouldn't they simply forward it to their customers, instead of contesting the issue in court? Because their contract with Chinese supplier forbids that? The Chineese supplier can not restrict distribution of the source, but it can add the provision that support contract is null and void if said source is sent to third-parties. Similarly to what RedHat is doing with RHEL kernel and individual patches. Thirdly, if the US company did try to invoke first-sale rights, they'd need to send the unmodified "original copy" to the customer. And they will do that. What's the problem? Either the "original copy" contains source or it doesn't. This is insane interpretation of GPL - not even FSF trying to do that. If you supply device (with GPLed binary in firmware) with sources on CD - you are in the clear. GPL does not ask to include sources in binaries, it demands to accompany binary with source. And finally, it seems unclear at best whether first-sale rights apply at all to software (or any other copyrighted works) distributed by download (instead of by physical media). This depends of where the version captured from the wire and stored on physical media (HDD in regular case, firmware in GPL-circumvention scheme) is "original copy" or the copy created via §117 exception. If it's original (as you try to imply) then everything is fine, if it's not (and the original copy was copy briefly present in the Ethernet wire) then this method will not work.
The "Death Penalty"... Posted Mar 28, 2012 1:54 UTC (Wed) by rqosa (subscriber, #24136) [Link] > > How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? > Because they want to actually hack on their own code? You know: exercise rights GPL was supposed to protect. So what you're saying is: the customer would first ask the US company for the source, who would say "We got the source from our supplier, but we won't give it to you. Go talk to the supplier instead", and then the customer would actually do that (instead of pursuing legal action against the US company). That's not very believable. > > Either the "original copy" contains source or it doesn't. > This is insane interpretation of GPL - not even FSF trying to do that. It's not even an "interpretation of GPL" at all, nor does it apply to any one license in particular. It's just a tautology. > GPL does not ask to include sources in binaries, it demands to accompany binary with source. You said that the Chinese supplier did accompany the binary with source. Therefore, the physical object that is considered the "original copy" for purposes of first-sale must be something containing both source and binary. Now, I suppose that the US company might try to use a loophole such as this: the Chinese supplier puts on the distribution server two files, one containing source and the other containing the binary, and then the US company downloads only the binary one. (Actually, they could do this even if the server only contanied a single file with both source and binary — they could download only the binary by sending an HTTP request that has a "Range:" header, such that only the section of the file containing the binary is downloaded!) Then, when the US company gets sued, they say in court: "We did give the customer the exact original copy that we received from the supplier. Sure we could have gotten the source from them, but we didn't actually do so. Therefore, the supplier is the guilty one, not us." But that's so obviously unfair to the supplier that the US company would never get away with it. And even if they did somehow get away with it, then they'd be banned from importing from that supplier. (It's exactly this kind of issue that makes it difficult to establish exactly what the "original copy" of a download is. That's why I believe that the courts would just take the easy way out and establish a precedent that first-sale rights simply don't exist for copyrighted works distributed by download.) > This depends of where the version captured from the wire and stored on physical media (HDD in regular case, firmware in GPL-circumvention scheme) is "original copy" or the copy created via §117 exception. If it's original (as you try to imply) No, I never tried to imply that the "original copy" here is the one stored in HDD or flash RAM. If I had to guess, I'd guess that the other possibility (the original was the Ethernet wire or the NIC RAM chips during the brief time they contained the data, and therefore the original no longer exists) is the one that applies in this case.
The "Death Penalty"... Posted Mar 27, 2012 7:41 UTC (Tue) by khim (subscriber, #9252) [Link] Because it's unclear what the "original copy" is in the case of downloads. For works distributed on physical media (optical discs, printed books, etc.) it's obvious what the original copy is: it's the physical item the buyer received from the seller. For a downloaded file, though, what physical item is the original copy? If you initially downloaded it onto your HDD, then does that mean that your HDD is the "original copy"? Or maybe the "original copy" is actually the RAM used by your NIC device, in which case there's no way that you can send it to someone else. Tut-tut-tut. You've said many times that you don't need to keep the content of the RAM used by your NIC device and you don't need to have any license to enjoy exceptions granted by §117. If your insane theory is correct then that means that there are no uncertainty: when the content of the RAM used by your NIC device is lost you still keep original (or else §117 will demand that you destroy all copies) so that means that in a world where you pompous “copyright is copy-right, not use-right” theory is correct original is most definitely the copy on HDD (and if instead of HDD you'll store it in firmware then this will be the original copy, obviously). I agree, I messed up when I thought GPL-circumvention scheme requires use of §117: it does not - at least not directly. Instead it uses indirectly: to establish just what is “original copy”. Take your pick: either you need a license (implied or otherwise) to download and use any software or you don't need it and then it's Ok to sell GPL-compliant routers without source using aforementioned scheme. You can not have both at the same time.
The "Death Penalty"... Posted Mar 28, 2012 0:47 UTC (Wed) by rqosa (subscriber, #24136) [Link] > You've said many times that you don't need to keep the content of the RAM used by your NIC device and you don't need to have any license to enjoy exceptions granted by §117. For the §117 rights, that's true — because it doesn't matter whether the private copies you made are one, two, …, or N generations away from the "original". So, for example, you can copy it from NIC to HDD (passing through CPU RAM and the disk controller along the way), then from HDD to a flash drive, from flash drive to another computer's HDD, etc etc. But the first-sale right is a different matter altogether — it means that you are allowed to sell the "original", but not any copies of it (in fact, §117 says that you must destroy all such copies when you sell the "original"). So if the courts decide that the NIC RAM was the "original copy", then you can't exercise your first-sale rights at all for downloaded software. > when the content of the RAM used by your NIC device is lost you still keep original (or else §117 will demand that you destroy all copies) No, §117 doesn't demand that you destroy all copies when the original is destroyed. (If it did, that would totally negate the point of allowing you to make "archival copies".) It demands that you destroy them when you lose the right to possess the original copy — in other words, when you sell the original copy, or when a court decides that you didn't actually own the original copy in the first place (which is what happened in Vernor v. Autodesk). > correct original is most definitely the copy on HDD That's not obvious at all. > I agree, I messed up when I thought GPL-circumvention scheme requires use of §117: it does not Yes, now that I think about it, it's not actually correct that "they would need to invoke more than just §117, but also the "first sale" right" — instead, §117 is totally irrelevant in this case, and all that matters is whether "first sale" applies or not. > at least not directly. Instead it uses indirectly: to establish just what is “original copy”. §117 does not clarify exactly what is the "original copy" in the case of software distributed by download. That is something that's up to the courts to decide. And I expect that in the event that a router manufacturer did try to invoke first-sale rights in the manner that you described, the courts would quickly establish a legal precedent that the first-sale right only applies to distribution by tangible media, and not to downloads. In fact, I believe that this is already the general consensus, at least among companies in the pay-to-download business (e.g. GamersGate, GOG.com, eMusic, Amazon, etc.), and among companies in the used-media business (e.g. thrift stores, used record stores, etc.). For example, suppose that I take a DVD+RW disc full of Windows games (DRM-less ones, even) that I downloaded from a pay-to-download store to a local thrift store, and say to them "I bought these legitimately and I've deleted all my copies of them other than the ones on this disc, so it's legal for you to buy this disc and resell it; will you buy it from me?" They'd tell me "no, we won't buy it" for sure, because they're not willing to take the risk that first-sale rights don't apply in this case. (And this same thrift store does sell used CD-ROMs with PC software.) > Take your pick: either you need a license (implied or otherwise) to download and use any software or you don't need it and then it's Ok to sell GPL-compliant routers without source using aforementioned scheme. You can not have both at the same time. Take your pick: either the source-less firmware in the router is the "original copy" (in which case the Chinese supplier is guilty of copyright infringement), or it is a non-original copy (and maybe not even an exact copy) made by the US manufacturer (in which case the US router manufacturer is guilty of copyright infringement). You are the one who's trying to have it both ways!
The "Death Penalty"... Posted Mar 26, 2012 10:14 UTC (Mon) by anselm (subscriber, #2796) [Link] WRT programs? I doubt it. US will add any such country to the list of rogue states, because it'll mean that it's basically impossible for BSA (and other similar organizations) to wrestle any money from infringing users. I just checked again, just to be sure: Downloading copyrighted stuff from the Internet is not automatically illegal here, as long as you do it for your own private use and do not download stuff from »obviously illegal sources« such as (presumably) file-sharing sites. What is illegal is to do this »commercially« (where the definition of »commercially« has more to do with scale and less with money), and to make stuff available for others to download without the copyright holder's consent. There is enough legal uncertainty here that I wouldn't want to personally test this in court. (Disclaimer: IANAL.) If the BSA »audits« your company and finds stuff on your computers that they don't like, they won't try to get you for downloading that stuff but for using that stuff in a commercial (rather than private) setting without a license, which is illegal but doesn't involve copyright (do note that the German and US notion of how copyright law works are quite different). Also the BSA doesn't tend to try to police downloading in the first place – they prefer to have disgruntled employees rat their employers out because that sort of case is way easier to make and win in court. AFAIK the US hasn't seen fit to declare Germany a »rogue state« so there may be other factors involved.
The "Death Penalty"... Posted Mar 26, 2012 13:41 UTC (Mon) by nix (subscriber, #2304) [Link] AFAIK the US hasn't seen fit to declare Germany a »rogue state« so there may be other factors involved.I think it quite safe to say that that isn't going to happen, either! (Not least because the US would have to explain it to Angela Merkel. Isn't *everyone* frightened of getting Merkel mad?)
The "Death Penalty"... Posted Mar 25, 2012 23:08 UTC (Sun) by rqosa (subscriber, #24136) [Link] > Are you cretin or just play one on TV? Are you an IP maximalist, or do you just play one on TV? > Can you imagine this dialogue in any court anywhere in the world? Yes. For example: Does the record in this case show that it is impossible for Plaintiff to prove particular instances of Defendant Howell’s illegal distribution of the copyrighted material through Kazaa, and the Defendant Howell is responsible for the absence of such records of distribution? > This is novel interpretation to me. Citation needed. In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did).Also, in their page titled "How To Not Get Sued For File Sharing": Disable the "sharing" or "uploading" features on your P2P application, if your application allows it (see below). > Companies do it all the time with updates. You can only download and use them if paid for the original. Otherwise it's considered piracy and can be prosecuted in court. This actually happens from time to time. Citation needed. > There are plenty of warez sites where you can download commercial proprietary software. People who did that end up in court and are fined regularly and §117 does not save them. Citation needed. > These two sentences form a license. It may not look like 100-pages commercial licenses, but it's license nonetheless. Then here's a better example: this program is available for download from the developer's website, with a simple copyright statement ("© Roderz 2003" on the web page and "Roderz 2003" in the title bar) and no license text whatsoever. And this isn't the only example of a copyrighted work (software or otherwise) distributed by its author without any license (which is therefore "all rights reserved" by default, according to the Berne Convention). What's more, "all rights reserved" or equivalent is the usual condition for most non-software works — for example, printed books usually say something like this: No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system, without permission in writing from the publisher.But such "all rights reserved" conditions don't prevent people from using (as opposed to copying/distributing) the copyrighted work. Because copyright is copy-right, not "use-right". At least that's the status quo — but of course the likes of the BSA are doing everything they can to pressure every government into turning copyright into use-right. The public at large (and the FLOSS community in particular) needs to learn that it's in their interest to fight back against this, and then do so (e.g. by supporting the EFF and other such political organizations).
The "Death Penalty"... Posted Mar 26, 2012 3:17 UTC (Mon) by rqosa (subscriber, #24136) [Link] A few more things: > > There are plenty of warez sites where you can download commercial proprietary software. People who did that end up in court and are fined regularly and §117 does not save them. Consider scenario 1: Person A hands a blank disc to person B, who copies a piece of software to the disc (in infringement of the copyright) and hands it back to person A. It seems obvious here that person B, not person A, is the one who's guilty of copyright infringement. Now consider scenario 2: Person A initiates a download of copyrighted software from a server owned by person B, where person B doesn't have permission to distribute the software. The way I see it, this scenario is no different from scenario 1 as far as the law is concerned. Maybe it's true that person A doesn't have the §117 rights (i.e. the right to make private copies) here because the initial copy received by A was made in violation of the copyright. However, now consider scenario 3: Person A initiates a download of GPL-licensed copyrighted software from a server owned by person B, where person B does have permission to distribute the software (because person B obeys the terms of the GPL). In this case, it's totally clear that person A has the §117 rights (which are not dependent on person A having permission from the copyright holder, and therefore not dependent on person A obeying the terms of the GPL). (And as a side note: if it's indeed true that people who downloaded from warez sites have ended up in court and been fined, that doesn't necessarily mean that they actually committed copyright violation — they might just have opted to pay off the copyright holder rather than pursue a time-and-money-consuming legal battle.) > this program is available for download from the developer's website, with a simple copyright statement ("© Roderz 2003" on the web page and "Roderz 2003" in the title bar) and no license text whatsoever. For an example of how the copyright terms of this program could be "tested in court", suppose that some other developer made a commercial software package for A/V editing/transcoding which includes a bundled copy of Ac3fix and/or Ac3fixGUI. Then the author could sue this other developer to make them stop distributing the bundled copy or start paying royalties for it. But the author can't win a lawsuit against someone who has only downloaded it (from the author's own site) and run it on their own computer.
The "Death Penalty"... Posted Mar 26, 2012 11:59 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
in your example, person A may be getting stolen goods, but the question is if they have reason to believe that they are stolen.
This is where the German "obviously illegal" clause comes in
The "Death Penalty"... Posted Mar 26, 2012 20:08 UTC (Mon) by rqosa (subscriber, #24136) [Link] It's arguable that, in scenarios 1 and 2, person A was guilty of inducing copyright infringement by person B. But that's clearly not the case in scenario 3.
The "Death Penalty"... Posted Mar 28, 2012 9:06 UTC (Wed) by etienne (subscriber, #25256) [Link]
>I own a HDD, and I downloaded a GPLed program onto it from a web server whose owner has permission to make copies of the program (because they obey the terms of the GPL). Therefore, I am the legal owner of the copy on my HDD...
In the general case, even if the web server owner did the copy (I am not sure about your interpretation), the web server owner still did only copy the package itself.
The "Death Penalty"... Posted Mar 28, 2012 20:53 UTC (Wed) by rqosa (subscriber, #24136) [Link] > installing packages implies copying files which is controlled by copyright. True, but (at least in US copyright law) it's explicitly allowed for a person to make such copies without having permission from the copyright holder; see §117 here: […] it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided […] that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other mannerAnd if that weren't the case, then it would be copyright violation to install any software whose license is "all rights reserved" or no license at all. (IIRC, most software discs/cartridges for game consoles that I've seen don't really have a "license" at all, they just have a warning statement saying things like "you're not allowed to make copies of the disc/cartridge".) > I do not really care of software that are so simple you do not need to install them However, some people have argued (even in this discussion) that the act of loading a program into CPU RAM in order to run it counts as making a copy — which would imply that permission from the copyright holder is necessary even to run the program. (Though again, §117 explicitly allows making this kind of "copy" without having permission from the copyright holder.)
The "Death Penalty"... Posted Apr 16, 2012 17:00 UTC (Mon) by nye (guest, #51576) [Link]
>True, but (at least in US copyright law) it's explicitly allowed for a person to make such copies without having permission from the copyright holder; see §117
Unfortunately the US is a precedent-based legal system, and case history suggests that §117 is meaningless in effect.
See http://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm't,_Inc. for example. This is essentially a 'first sale doctrine' case, in that it hinges on whether 'buying' software makes you the owner (for whom §117 applies) or merely a licensee (for whom it does not).
This ruling seems absurd in that the logical conclusion is that the only 'owner' is the copyright holder, who wouldn't need the permission granted in §117, making it completely void in all circumstances, but that's just a reflection on the sad state of copyright law today.
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