From: "Adam J. Richter" <adam@yggdrasil.com>
Date: Mon, 17 Mar 2003 21:07:14 -0800
Message-Id: <200303180507.VAA02383@adam.yggdrasil.com>
To: davids@webmaster.com
Subject: Re: Never ever send Pavel private mail unless you want him to publish
Cc: linux-kernel@vger.kernel.org, tzs@tzs.net
Sender: linux-kernel-owner@vger.kernel.org
Content-Length: 3563
Lines: 70

On Mon, 17 Mar 2003, David Schwartz:
>On Sun, 16 Mar 2003 21:22:03 -0800, Adam J. Richter wrote:

>>|         Under the aegis of the Moral Majority, Rev. Falwell?s conservative
>>| lobbying group, Falwell sent copies of the Hustler article, together
>>| with a letter soliciting donations to help finance his lawsuit against
>>| Hustler, to 29,000 of the organization?s major contributors.  There
>>| was no question that Falwell had copied the entire Hustler article but
>>| for ?eight of the most offensive words,? without any attempt to
>>| transform the original work.[30] Although the Ninth Circuit Court of
>>| Appeals determined that copying the original to solicit funds for
>>| Falwell?s lawsuit was clearly commercial,[31] it still ruled against
>>| Hustler stating that Defendant?s use ?could not have diminished any
>>| potential sales, interfered with the marketability of the parody or
>>| fulfilled the demand for the original work.?[32] The Moral Majority?s
>>| members, the Court observed, would ?probably not be counted among
>>| Hustler?s readers,? and therefore the defendants, while profiting from
>>| use of the copyrighted work, had not adversely affected the
>>| plaintiff?s market for it.[33]

>	There are really only two conclusions you can draw from this:

>	1) This only applies to a situation where the primary purpose of the 
>original publication is for the purposes of selling the item to 
>produce revenue and therefore it's reasonable to judge the copyright 
>violation on the basis of its affect on the sales of the original 
>work, or

>	2) You can violate copyright for commercial purposes so long as you 
>don't cost the original publisher anything. In which case, any GPL 
>violation is acceptable, since there's no "market" for a free work.

>	DS

	I am skeptical of any claim that "there are really only two
conclusions you can draw from this" if those conclusions are not of
the form "x" and "not x" (and conclusions of that form don't need to
be predicated on anything to begin with), at least without an
explanation that all other conclusions are impossible.

	I'm not a lawyer, so please don't rely on my layman's opinion
here as legal advice.

	In the Hustler v. Moral Majority case, I believe that the
purpose for which the copying was being done may also have been
relevant in establishing that it was fair use.  The copying was being
done to discuss what Hustler had written, even if it was also being
done to raise money.  I assume that this was also the case with
whatever email Pavel had posted.

	In comparison, if you violate the GPL, by, say, producing a
proprietary compiler comprising substantial amounts GCC source code, I
don't see how that action would qualify as fair use to begin with.
So, I would think that if the copyrights were registered with a form
TX from the copyright office, that one could recover statutory damages
($25k per infringement?) even if there were no provable "actual"
damages.

	Secondarily, it's also worth noting that there is potentially
a market for GPL exceptions.

Adam J. Richter     __     ______________   575 Oroville Road
adam@yggdrasil.com     \ /                  Milpitas, California 95035
+1 408 309-6081         | g g d r a s i l   United States of America
                         "Free Software For The Rest Of Us."
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