Subject: Re: For approval: GNU Affero General Public License
From: "Alexander Terekhov" <alexander.terekhov@gmail.com>
Date: Fri, 1 Feb 2008 13:45:27 +0100

On Feb 1, 2008 7:43 AM, Matthew Flaschen <matthew.flaschen@gatech.edu> wrote:
> John Cowan wrote:
> > Stormy Peters scripsit:
> >> We are also using the AGPL in http://ossdiscovery.org.  We didn't consider
> >> it a special purpose license when we choose it.
> >
> > Fine for you.  If the AGPLv3 were truly general-purpose, it would *be*
> > the GPLv3.
>
> It seems to me it should be in the same category as the Open Software
> License, "Other/Miscellaneous licenses".

To me it seems that AGPL should be in "17 USC 117 disagrees" category.

As john1040 :) noted and nicely explained it:

The AGPL purports to restrict one's right to modify software that runs
on a public server. It bases this on copyright law, which restricts
the right to make derivative works.

However, 17 U.S.C. 117 (a)(1) gives the "owner of a copy" of a
copyrighted computer program the right to modify the program if "...
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 manner"

Aymes v. Bonelli, 47 F.3d 23 (2d Cir. 1995) said that: [b]uyers should
be able to adapt a purchased program for use on the buyers computer
because without modifications, the program may work improperly, if at
all. No buyer would pay for a program without such a right.6[The
defendants], as rightful owners of a copy of the plaintiffs program,
did not infringe upon the copyright, because the changes made to the
program were necessary measures in their continuing use of the
software in operating their business and the program was not marketed,
manufactured, distributed, transferred, or used for any purpose other
than the defendants own internal business needs. (as quoted in
http://www.copyright.gov/1201/2006/comments/granick_wirelessalliance.pdf)

This right to modify was broadened in Krause v. Titleserv 03-9303

http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf

Discussion:
http://www.techlawjournal.com/topstories/2005/20051107.asp

Krause is important to AGPL because it includes the use of software
over a network. The court found that the "owner of a copy" of a
computer program could add new features essential to its business --
including customer modem access to use the program -- without
permission from the copyright owner.

Krause was sited recently in a similar case: Weitzman v. Microcomputer
06-60237-CIV, 2007 WL 744649 (S.D. Fla. March 6, 2007).
http://www.thelen.com/tlu/StuartWeitzmanVMicroComputer.pdf
The established law of the land in the United States is
that the "owner of a copy" of a computer program has the right to
modify that copy for its business needs. The AGPL cannot restrict this
right without being an EULA and using contract law.

So, a SaaS provider that is the "owner of a copy" of an AGPL computer
program has the right to modify its copy of that program to further
its business needs, and it does not require the permission of the
copyright holder to do so. This means that it does not have to provide
the source publicly for any modifications that it makes. The only way
to prevent this is to use an EULA and contract law.

End quote.

regards,
alexander.

--
"Because of their informal and diffuse nature, open source groups are
vulnerable to theft of their intellectual property. That theft, in the
form of copyright infringement, happened in this case, and Jacobsen
sought a preliminary injunction to enjoin Katzer and KAMIND's
infringement."

 -- BRIEF OF ROBERT G. JACOBSEN, PLAINTIFF-APPELLANT, CAFC 2008-1001