Hyman Rosen wrote: [...] > Misuse of copyright, when applied at all (its appearance is rare > as hen's teeth), is found in anti-competitive and anti-trust
http://digital-law-online.info/lpdi1.0/treatise15.html "The copyright misuse defense is similar to an antitrust claim, where a copyright owner has misused the limited monopoly granted by the copyright. However, the Lasercomb decision made it clear that the copyright misuse defense is available even when the misuse does not reach the level of an antitrust violation. " http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914535 "Two sets of per se rules may be fashioned by the courts. The first type identifies misuse violating the antitrust laws while the second type identifies misuse violating an important public policy behind the intellectual property grant. We discuss both types of per se rules. If a challenged action does not fit within either set of per se rules, courts may engage in a rule of reason analysis. Again, two approaches are possible. The first approach, which coincides with patent and antitrust analysis, weighs the anticompetitive and procompetitive effects of the challenged action. The second approach is broader in scope and balances policy interests reflected in the intellectual property system. " https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=10+Tex.+Intell.+Prop.+L.J.+349&srctype=smi&srcid=3B15&key=ed9b5ca9c1263ab00ffd595e9d8bf201 "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. " regards, alexander. P.S. "Every computer program in the world, BusyBox included, exceeds the originality standards required by copyright law." Hyman Rosen <hyro...@mail.com> The Silliest GPL 'Advocate' P.P.S. "Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress." Hyman Rosen <hyro...@mail.com> The Silliest GPL 'Advocate' -- 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
