[H-GEN] GPL question

David Starkoff dbs at uq.net.au
Wed Jan 7 03:02:53 EST 2004


On 07/01/2004, at 8:38 AM, Trent Waddington wrote:

>> When a program on disk is run in a computer, a copy of the computer 
>> program (or at least a partial copy) is copied into RAM.  Absent a 
>> licence, this is an infringement of copyright.  (There's case law on 
>> this in Australia: Microsoft Corporation v Business Boost Pty Ltd 
>> [2000] FCA 1651, 
>> <http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1651.html>.)
>
> This is contradictory to what Eben Moglen has said about users being 
> required to have a license to run software.  Apparently all those 
> recently additions to copyright law that we all know and hate have 
> contributed something useful, in the form of a clause that says 
> "incidental copies" such as copying the program into RAM are not 
> classified as copies for the purpose of copyright law.

That's very true.  I should have said "[a]bsent a licence or statutory 
authorisation".  In Australia, the provision is s 47B of the Copyright 
Act 1968 (Cth), 
<http://scaleplus.law.gov.au/html/pasteact/0/244/0/PA000770.htm>, but 
there are some non-trivial riders to that provision.

(Incidentally, Division 4A of Part III of the Copyright Act, which 
includes numerous handy exceptions for what would otherwise be 
copyright infringement of computer programs, was introduced by the 
Copyright Amendment (Computer Programs) Act 1999.  This was the 
precursor to the Copyright Amendment (Digital Agenda) Act 2000, on 
which the debate more often focuses.)

> I'd love to send you a link to where I Eben Moglen wrote this, but it 
> was in the FSF newsletter last year that I only received on dead 
> trees.

Prof Moglen says as much at 
<http://www.gnu.org/philosophy/sco/questioning-sco.html> among, I 
suspect, other places.  D. J. Bernstein is of essentially the same 
view: <http://cr.yp.to/softwarelaw.html>.

I think my original point still holds: you don't need a specific 
licence to run either the library or the program (putting to one side 
the dynamic linking) individually.  But running them both together 
creates a derivative work.  The GPL, by its terms, attaches to the 
distribution, not the running.  The impugned act, I think, is the 
distribution of a dynamically linked program that, when executed, is an 
unlicensed derivative work.

As the act of distributing the dynamically-linked program isn't 
permitted by the GPL, the rights granted by the GPL are withdrawn 
(clause 4) and, therefore, the user has no permission to run the 
program, because they have an unlicensed copy.

But, as I said before, it's not clear.

David.




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