Hyman Rosen wrote: [...] > If you link it statically with GCC, then the linked binary as a whole > must be distributed under the GPL, including the (formerly) standalone > piece. That's because in this case, copying of a GPLed work occurs.
According to the FSF (the GPL drafter), this copying falls under "mere aggregation", Hyman. The FSF is on record: http://www.terekhov.de/Wallace_v_FSF_37.pdf "In fact, the GPL itself rejects any automatic aggregation of software copyrights under the GPL simply because one program licensed under the GPL is distributed together with another program that is not licensed under the GPL: "In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License." Plaintiff's mischaracterization of the GPL in his Response has no bearing on the resolution of the pending Motion to Dismiss because the Court can examine the GPL itself. "[T]o the extent that the terms of an attached contract conflict with the allegations of the complaint, the contract controls." Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933 (7th Cir. 2005) ... Respectfully submitted, s/ Curtis W. McCauley Philip A. Whistler (#1205-49) Curtis W. McCauley (#16456-49) Attorneys for Defendant, Free Software Foundation, Inc. ICE MILLER One American Square Box 82001 Indianapolis, IN 46282-0002 317.236.2100" Alternatively, consider: Quoting from "Open Source Licensing: Virus or Virtue?": ------- 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 provisionthe 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 contextand 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 licensorand the entire worldon 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] ------- regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
