The "Death Penalty"...
Posted Mar 26, 2012 20:53 UTC (Mon) by rqosa
In reply to: The "Death Penalty"...
Parent article: Enforcing the GPL with Judo moves (The H)
> 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?
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