< Part II > Alexander Terekhov wrote: [...] > As for the US, < Forward Inline > > > -------- Original Message -------- > Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch > Subject: Re: Stallman rants about FreeBIOS > Message-ID: <[EMAIL PROTECTED]> > References: ... <[EMAIL PROTECTED]>
[... why the GPL just can't work under copyright law ...] Just in case you'll come across an idiot proclaiming that the GPL works as an "agreement" (apart from Germany... where contractual limitation of first sale principle is held to be invalid)... well, research the topic of enforceability of "contracts of adhesion" and contracts in general yourself. Here's some hints, so to speak. < 2 x Forward Inline > -------- Original Message -------- Message-ID: <[EMAIL PROTECTED]> Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch Subject: Re: Stallman rants about FreeBIOS References: ... <[EMAIL PROTECTED]> Bernd Paysan wrote: [...] > if the terms are accepted. The GPL is a bare copyright license, not a contract. It merely misstates the law (go read both 17 USC 109 and 17 USC 117 to begin with) and just can't legally compel you to relinquish rights that you enjoy under copyright law (or any other rights; in contrast to other contractual OSS licenses*** written by real IP lawyers, not some obsessive and oppressive lunatic with the help of a law historian fond of spreading anti-copyright-and-patent anarchistic propaganda). <quote source=http://tinyurl.com/3c2n2> Adobe characterizes each transaction throughout the entire stream of commerce as a license.8 Adobe asserts that its license defines the relationship between Adobe and any third-party such that a breach of the license constitutes copyright infringement. This assertion is not accurate because copyright law in fact provides certain rights to owners of a particular copy. This grant of rights is independent from any purported grant of rights from Adobe. </quote> s/Abobe/FSF See also http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF (Specht v. Netscape Communications Corp.) Furthermore, FSF's expansive claims (just like SCO's -- see Tenth IBM's defense) are barred by the doctrine of copyright misuse. <quote source="Open Source Licensing: Virus or Virtue?"> Even if the open source license [GPL] is binding, the copyleft provision may still not be enforceable as to independent proprietary code, in light of the intellectual property misuse doctrine. The doctrine is asserted as an affirmative defense to an intellectual property infringement claim. Much like an unclean hands defense, the misuse doctrine precludes enforcement of intellectual property rights that have been extended beyond the scope of those rights. [...] A successful misuse defense bars the misuser from prevailing against anyone on an action for infringement of the misused intellectual property, even against defendants who have not been harmed or affected by the misuse.[76] The misuse doctrine was judicially created, first in the patent context. Only recently has the misuse doctrine been extended to copyrights, building on the rich misuse history in the patent law.[77] Importantly, most courts have found misuse without requiring a finding of antitrust liability.[78] Thus, market power is unnecessary, as is any analysis of the competitive and anticompetitive impacts of the provision.[79] The courts have yet to analyze a copyleft provision for misuse, but the courts have addressed an analogous provision—the grantback. A grantback provision requires that a licensee of intellectual property grant back to the licensor a license or ownership in creations made by the licensee. The typical grantback provision requires that the licensee give the licensor a nonexclusive license to any improvements or derivatives that the licensee creates based on the original licensed property. The idea is that the licensee would not have been able to make the improvement or derivative without permission of the licensor or at least access to the original; thus, the licensor should not be blocked by an improvement or derivative he and his intellectual property helped create. Giving the license back encourages licensors to license, since it mitigates the risk of becoming blocked by derivative intellectual property. Like a grantback, copyleft requires the licensee to license back its improvements. The copyleft provision is more expansive, though. [...] Although grantbacks have not come up in the copyright misuse arena, they have in the patent context—and as we have seen, the patent misuse cases form the underpinning for the copyright misuse doctrine. Courts have found that grantback clauses extending to improvements are not misuse, because the licensee in some sense developed the improvement with the help of the original patent. Where grantback clauses extend to preexisting or unrelated patents, however, courts have found patent misuse. Where "the scope of [licensee's] 'improvements' and inventions required to be assigned to [the patent licensor] extended far beyond the scope of [the] basic patent [licensed by licensor] the effect was to extend unlawfully its monopoly and thus result in patent misuse."[80] Plainly, the Patent Act does not give the patent owner rights to other unrelated patents, and using a patent to obtain such rights exceeds the scope of the patent. Similarly, the Copyright Act's grant of rights does not extend to unrelated works or preexisting (and therefore necessarily nonderivative) works, and using the copyright license to extract such rights exceeds the scope of the copyright grant. This may constitute copyright misuse. A license to a copyrighted work on condition that any work with which it is combined or shares data must be licensed back to the licensor—and the entire world—on the specific terms the licensor mandates, is beyond the scope of the copyright in the originally licensed work. Yet this is what the GPL apparently requires. The copyleft provision purports to infect independent, separate works that are not derivative of the open source code, and requires that such independent works be licensed back to the licensor and the entire world under the GPL. The Copyright Act does not give the copyright owner rights to such independent nonderivative works. Attempting to extract such rights exceeds the scope of the copyright. The fact that the GPL mandates that the license be free and open is irrelevant; as explained above, misuse doctrine does not require an analysis of market share, or a weighing of the competitive and anticompetitive effects of the provision. If the copyleft provision constitutes misuse, then the plaintiff's copyrights in the open source program are unenforceable until the misuse is purged.[81] As a result, at least with respect to the code contributed by any plaintiff, the defendant (and anyone else) could infringe the copyright with impunity, including taking the code private for his own commercial ends.[82] Thus, licensors using copyleft licenses need to realize that they may be unable to enforce the copyleft provision against separate works of the licensee, and that any such attempt may at least temporarily invalidate all their copyrights in the entire open source program. Copyleft licenses are still valuable, however, where they do not try to infect independent code. They should safely cover any dependent derivative works based on the original GPL code. Licensors simply need to understand the potential limitations and risks of copyleft to employ it effectively. </quote> regards, alexander. ***) e.g the CPL: http://www.opensource.org/licenses/cpl.php <quote> No party to this Agreement will bring a legal action under this Agreement more than one year after the cause of action arose. Each party waives its rights to a jury trial in any resulting litigation. </quote> -------- Original Message -------- Message-ID: <[EMAIL PROTECTED]> Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch Subject: Re: Stallman rants about FreeBIOS References: ... <[EMAIL PROTECTED]> Bernd Paysan wrote: [...] > It's a simple copyright violation if you don't accept the > GPL, and violate the terms - i.e. it's not a lawful copy. C'mon, as far as copyright is concerned, copies just can't become unlawful just because they change owners under terms (or whatever) you don't like. If I want to make a copy or two incorporating protected elements from some publicly available GPL'd work(s), I certainly have all the rights to copy and all those copies are lawful. http://gl.scofacts.org/gl-20031214210634851.html Moglen: "Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn't say in the event of trouble "But, judge, the licensee promised me he wouldn't do what he's doing now." The licensor plaintiff says 'Judge, the defendant is redistributing my copyrighted work without permission.'" And the defendant says "17 USC 109, Judge." Judge: Case closed. Heck, what is so hard to understand here? regards, alexander. _______________________________________________ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss