Subject: Re: Affero Licence/AGPL
From: "Alexander Terekhov" <alexander.terekhov@gmail.com>
Date: Fri, 14 Mar 2008 19:08:49 +0100

On Thu, Mar 13, 2008 at 10:01 PM, Matthew Flaschen
<matthew.flaschen@gatech.edu> wrote:
> Ryan Cross wrote:
> > Thanks for the heads up Matt! Guess my searching wasn't quite as
> > comprehensive as I hoped.
> >
> > I noticed that the AGPL isn't listed in the issue queue. Has there
> > been any moves to approve it? or deny it?
>
> For anyone that isn't subscribed to license-review, the GNU Affero GPL
> was just approved, along with one or two others.

Hilarious. Does that mean that OSI disapproves 17 USC 117?

(quoting the AGPL)

"Notwithstanding any other provision of this License, if you modify
the Program, your modified version must prominently offer all users
interacting with it remotely through a computer network (if your
version supports such interaction) an opportunity to receive the
Corresponding Source of your version by providing access to the
Corresponding Source from a network server at no charge, through some
standard or customary means of facilitating copying of software."

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 cited 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.

Attribution: john1040.

"You are not required to accept this License in order to receive or
run a copy of the Program. Ancillary propagation of a covered work
occurring solely as a consequence of using peer-to-peer transmission
to receive a copy likewise does not require acceptance. However,
nothing other than this License grants you permission to propagate or
modify any covered work. "

Eh?

"However, nothing other than this License grants you permission to
propagate or modify any covered work. "

That's NOT true.

"However, nothing other than this License grants you permission to
propagate or modify any covered work. These actions infringe copyright
if you do not accept this License. "

Eh?

"These actions infringe copyright if you do not accept this License. "

Not at all. The actions to "propagate" (in interplay with 17 USC 109)
or modify (in interplay with 17 USC 117) do NOT infringe copyright
even if you do NOT "accept this License. "

regards,
alexander.

--
"12/21/2007 ORDER TO EXTEND TIME FOR DEFENDANT...
 01/22/2008 ORDER TO EXTEND TIME FOR DEFENDANT...
 02/19/2008 ORDER TO EXTEND TIME FOR DEFENDAT(sic)...
 02/26/2008 ENDORSED LETTER addressed to Judge Laura Taylor Swain from
Daniel B. Ravicher...
 02/27/2008 ORDER that Defendants Verizon Communications, Inc. has
until March 14, 2008..."

 -- 1:07-cv-11070-LTS aka Never Beginning "GPL Enforcement" case