On Feb 11, 11:55 am, Rjack <[email protected]> wrote: > Alexander Terekhov wrote: > > "The doctrine “forbids the use of the [copyright] to secure an > exclusive right or limited monopoly not granted by the [Copyright] > Office and which is contrary to public policy to grant.” Altera > Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir. > 2005)(citation omitted)." > > http://docs.justia.com/cases/federal/district-courts/california/candc... > > This is the central flaw of the GPL license. It attempts to secure > the exclusive rights of a modifying author who accepts GPL code by > attempting to force them to license their modifications "to all > third parties" under terms of the GPL. A "viral" public copyright > license is the very definition of copyright misuse. > > Sincerely, > Rjack :)
No, it reserves the exclusive § 106 rights of the copyright holder - (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; to those willing to abide by the GPL, a license granting the holder in good standing license to execute those exclusive rights albeit with conditions that may be onerous. >From the GPL: 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. The GPL does not enlarge the rights of the copyright holder. Note that your typical EULA places additional use restrictions in excess of those found in Title 17, without granting any exclusive right of the copyright holder license. Such a EULA would not be based on copyright law. The issue is whether or not Apple is committing copyright misuse by attempting to use Title 17 (Copyrights) provisions to prevent uses not held exclusively by the copyright holder. You could note that those exclusive rights are limited by § 117: (a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that 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, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. The definition of adaptation is included in § 101: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (An adaptation is a derivative work) >From Apple's amended complaint: http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03251/204881/36/0.pdf We see that they are claiming Psystar violates the DMCA (Page 11, third claim for relief). >From the DMCA § 1201 (c) (1): Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. We could note that the title for § 117 - Limitations on exclusive rights: Computer programs appears to meet the proviso specified in § 1201 (c) (1). This certainly appears to hold the possibility that should Psystar not be found to be violating the exclusive rights of the copyright holder by operating within limitations from § 117 (as opposed to the EULA), that Apple is attempting to use Title 17 to enlarge their use rights by copyright misuse, invoking the DMCA. You could note that Apple's amended complaint preceeds Psystar's counter claims of copyright misuse. See: http://www.techlawjournal.com/topstories/2003/20030826.asp "A second area where the doctrine of copyright misuse, as described in Video Pipeline, might be applied, is assertion of the Digital Millennium Copright [sic] Act (DMCA) to obtain quasi patent rights. That is, traditionally a copyright owner's main remedy has been for violation of his exclusive rights of copyright, as provided in 17 U.S.C. § 106 -- that is, an action for infringement." VIDEO PIPELINE, INC. v. BUENA VISTA HOME ENTERTAINMENT doesn't raise the specter of DMCA copyright misuse directly but leads (circuitously) to: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320961 Anti-Circumvention Misuse Dan L. Burk University of California, Irvine Law School July 31, 2002 Minnesota Public Law Research Paper No. 02-10 The paper does mention § 1201 (c) (1) as a limitation on the DMCA (Page 13), although I can attest that you can find it on your own. You could also note from the abstract: " ... More recently, overreaching in copyright licensing has been recognized to constitute a form of misuse. Abuse of copyright in the context of computer software licensing has been the typical setting for a finding of misuse. Recent cases have held that inclusion of a ninety-nine year non-competition provision as a term of a software copyright license, or the tying of unpatented hardware to the license of copyrighted software, constitute misuse of the copyright." -- Then again, I'm not a lawyer, and this isn't legal advice. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
