The "Death Penalty"...
Posted Mar 26, 2012 20:00 UTC (Mon) by khim
In reply to: The "Death Penalty"...
Parent article: Enforcing the GPL with Judo moves (The H)
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.
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