conducting a sane and efficient GPLv3, LGPLv3 Review

[Lawrence Rosen]

> Please cite relevant published opinions and cases, not "conversations
> with many other attorneys."

Quite frankly, I'd rather hear directly from other attorneys on this list
rather than quote private conversations with LOTS of attorneys going back
many years. ***Please don't be afraid to speak up.*** The worst that will
happen is that you'll start another flame war with GPL zealots about how
important it is for the FSF to protect GPL software and the "copyleft
philosophy" from other software regardless of what the copyright law
actually says. :-)

If you believe that my reading of GPLv3 or copyright law is wrong, why don't
YOU cite published opinion or case to that effect? You know as well as I do,
Zak, that the courts have not spoken out about these topics in the open
source context with any clarity. Asking me for case citations at this stage
is a way to shut off discussion.

/Larry

> -----Original Message-----
> From: Zak Greant [mailto:zak.greant@...] On Behalf Of Zak Greant
> Sent: Wednesday, August 01, 2007 12:55 PM
> To: lrosen@...
> Cc: 'License Discuss'
> Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> Greetings Larry, Aloha All,
>
> >> Just that the disagreement between Larry and most other people is of
> >> long standing and unlikely to go away, but has hitherto been of
> >> little
> >> practical effect.
> >
> > Disagreement with "most other people"? Hogwash! As I gather from my
> > conversations with many other attorneys, most other people think
> > FSF and
> > SFLC are wrong on the legal issue of combining GPL software in
> > collective
> > works with other works. I will admit that this disagreement "has
> > been of
> > little practical effect," but this is at least partly because some
> > people on
> > this list and elsewhere make general statements like yours with
> > little basis
> > in law or fact.
>
> Please cite relevant published opinions and cases, not "conversations
> with many other attorneys."
>
> Cheers!
> --zak

[Smith, McCoy]

Someone previously did a pointer to this article, which might be
considered a relevant citation:

http://www.usfca.edu/law/determann/softwarecombinations060403.pdf

It's pretty detailed but seems to at least tangentially discuss the
issue (with lots of case cites).

-----Original Message-----
From: Lawrence Rosen [mailto:lrosen@...]
Sent: Wednesday, August 01, 2007 3:26 PM
To: 'License Discuss'
Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review

> Please cite relevant published opinions and cases, not "conversations
> with many other attorneys."

Quite frankly, I'd rather hear directly from other attorneys on this
list
rather than quote private conversations with LOTS of attorneys going
back
many years. ***Please don't be afraid to speak up.*** The worst that
will
happen is that you'll start another flame war with GPL zealots about how
important it is for the FSF to protect GPL software and the "copyleft
philosophy" from other software regardless of what the copyright law
actually says. :-)

If you believe that my reading of GPLv3 or copyright law is wrong, why
don't
YOU cite published opinion or case to that effect? You know as well as I
do,
Zak, that the courts have not spoken out about these topics in the open
source context with any clarity. Asking me for case citations at this
stage
is a way to shut off discussion.

/Larry

> -----Original Message-----
> From: Zak Greant [mailto:zak.greant@...] On Behalf Of Zak Greant
> Sent: Wednesday, August 01, 2007 12:55 PM
> To: lrosen@...
> Cc: 'License Discuss'
> Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> Greetings Larry, Aloha All,
>
> >> Just that the disagreement between Larry and most other people is

of

> >> long standing and unlikely to go away, but has hitherto been of
> >> little
> >> practical effect.
> >
> > Disagreement with "most other people"? Hogwash! As I gather from my
> > conversations with many other attorneys, most other people think
> > FSF and
> > SFLC are wrong on the legal issue of combining GPL software in
> > collective
> > works with other works. I will admit that this disagreement "has
> > been of
> > little practical effect," but this is at least partly because some
> > people on
> > this list and elsewhere make general statements like yours with
> > little basis
> > in law or fact.
>
> Please cite relevant published opinions and cases, not "conversations
> with many other attorneys."
>
> Cheers!
> --zak

[Arnoud Engelfriet-2]

Lawrence Rosen wrote:
> Quite frankly, I'd rather hear directly from other attorneys on this list
> rather than quote private conversations with LOTS of attorneys going back
> many years. ***Please don't be afraid to speak up.*** The worst that will
> happen is that you'll start another flame war with GPL zealots about how
> important it is for the FSF to protect GPL software and the "copyleft
> philosophy" from other software regardless of what the copyright law
> actually says. :-)

Personally I'm leaning towards your opinion. The problem is, I need
to ensure that my client (the company I work for) doesn't get into
problems if you and I are mistaken. So that's why in practice I go
with the FSF's opinion.

Worst case, we now open source some code without legally being
obliged to, or we needlessly purchase proprietary licenses.

The alternative is that we dynamically link with GPL code and
then find ourselves in a position where we are compelled to
publish code we consider proprietary under the GPL.

Here in Europe licenses like the GPL are contracts and
specific performance is a routine remedy for contract violations.
That makes Moglen's view at http://lwn.net/Articles/61292/
"The claim that a GPL violation could lead to the forcing open of
proprietary code that has wrongfully included GPL'd components is simply
wrong. There is no provision in the Copyright Act to require
distribution of infringing work on altered terms."
inapplicable here. A Dutch court for example would construct GPL 3b
as a contractual obligation to publish derivative works as a whole
under GPL. We could be held to that obligation.

So, I agree with you but I do as Moglen says. :)

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Alexander Terekhov-3]

On 8/2/07, Smith, McCoy <mccoy.smith@...> wrote:
> Someone previously did a pointer to this article, which might be
> considered a relevant citation:
>
> http://www.usfca.edu/law/determann/softwarecombinations060403.pdf
>
> It's pretty detailed but seems to at least tangentially discuss the
> issue (with lots of case cites).

In addition, Zak might want to visit the following links

http://www.law.washington.edu/LCT/Events/FOSS/MootFacts.pdf
(Moot Court Statements of Fact)

http://www.law.washington.edu/LCT/Events/FOSS/OmegaBrief.pdf
(Omega Plaintiff's Brief)

http://www.law.washington.edu/LCT/Events/FOSS/AlphaBrief.pdf
(Alpha Defendant's Brief)

http://www.law.washington.edu/LCT/Events/FOSS/media/03.%20Beyond%20the%20Basics%20-%20Moot%20Court.mp3
(Hearing and Q&A)

-------
The Scope of "Derivative Works" as Applied to Software: David Bender of White
& Case LLP and author of Computer Law and Ieuan Mahony of Holland & Knight
LLP will argue the proper scope of "derivative work" under U.S. copyright law
when applied to software, before a panel of distinguished federal appellate
judges:

* HONORABLE WILLIAM C. BRYSON, U.S. Court of Appeals for the Federal Circuit
* HONORABLE HALDANE ROBERT MAYER, U.S. Court of Appeals for the Federal Circuit
* HONORABLE MARGARET MCKEOWN, U.S. Court of Appeals for the Ninth Circuit
-------

There were a whole bunch of remarkable remarks from judges.

Like "what is a license if not a contract", "the real word issue" of
preemption, "intent" is not really helpful, etc. etc.

Hth.

regards,
alexander.

[Walter van Holst-2]

________________________________________
Van: Arnoud Engelfriet [arnoud@...]
Verzonden: donderdag 2 augustus 2007 9:42
Aan: Lawrence Rosen
CC: 'License Discuss'
Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

Lawrence Rosen wrote:
> Quite frankly, I'd rather hear directly from other attorneys on this list
> rather than quote private conversations with LOTS of attorneys going back
> many years. ***Please don't be afraid to speak up.*** The worst that will
> happen is that you'll start another flame war with GPL zealots about how
> important it is for the FSF to protect GPL software and the "copyleft
> philosophy" from other software regardless of what the copyright law
> actually says. :-)

Personally I'm leaning towards your opinion. The problem is, I need
to ensure that my client (the company I work for) doesn't get into
problems if you and I are mistaken. So that's why in practice I go
with the FSF's opinion.

Worst case, we now open source some code without legally being
obliged to, or we needlessly purchase proprietary licenses.

The alternative is that we dynamically link with GPL code and
then find ourselves in a position where we are compelled to
publish code we consider proprietary under the GPL.

Here in Europe licenses like the GPL are contracts and
specific performance is a routine remedy for contract violations.
That makes Moglen's view at http://lwn.net/Articles/61292/
"The claim that a GPL violation could lead to the forcing open of
proprietary code that has wrongfully included GPL'd components is simply
wrong. There is no provision in the Copyright Act to require
distribution of infringing work on altered terms."
inapplicable here. A Dutch court for example would construct GPL 3b
as a contractual obligation to publish derivative works as a whole
under GPL. We could be held to that obligation.

So, I agree with you but I do as Moglen says. :)

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Walter van Holst-2]

________________________________________
Van: Arnoud Engelfriet [arnoud@...]
Verzonden: donderdag 2 augustus 2007 9:42
Aan: Lawrence Rosen
CC: 'License Discuss'
Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review


>Personally I'm leaning towards your opinion. The problem is, I need
>to ensure that my client (the company I work for) doesn't get into
>problems if you and I are mistaken. So that's why in practice I go
>with the FSF's opinion.

At the end of the day the FSF's interpretation of the GPL doesn't matter in court as much as the licensor's intention with using the GPL. I would not be terribly surprised if a Dutch court would ignore Eben's interpretation and go with the actual content of the GPL in a case where the FSF is not the copyright holder of the software in question.

Regards,

 Walter

(not an attorney but a mere contract lawyer)

[Arnoud Engelfriet-2]

Walter van Holst wrote:

> >Personally I'm leaning towards your opinion. The problem is, I need
> >to ensure that my client (the company I work for) doesn't get into
> >problems if you and I are mistaken. So that's why in practice I go
> >with the FSF's opinion.
>
> At the end of the day the FSF's interpretation of the GPL doesn't matter
> in court as much as the licensor's intention with using the GPL. I would
> not be terribly surprised if a Dutch court would ignore Eben's
> interpretation and go with the actual content of the GPL in a case where
> the FSF is not the copyright holder of the software in question.

I would not be surprised either. However I create a risk for my
client if I do not go with the FSF's opinion.

If case law shows the FSF is mistaken, then we can revise our
policy to match the case law. I don't want to *be* the case law.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Alexander Terekhov-3]

On 8/2/07, Arnoud Engelfriet <arnoud@...> wrote:

> Walter van Holst wrote:
> > >Personally I'm leaning towards your opinion. The problem is, I need
> > >to ensure that my client (the company I work for) doesn't get into
> > >problems if you and I are mistaken. So that's why in practice I go
> > >with the FSF's opinion.
> >
> > At the end of the day the FSF's interpretation of the GPL doesn't matter
> > in court as much as the licensor's intention with using the GPL. I would
> > not be terribly surprised if a Dutch court would ignore Eben's
> > interpretation and go with the actual content of the GPL in a case where
> > the FSF is not the copyright holder of the software in question.
>
> I would not be surprised either. However I create a risk for my
> client if I do not go with the FSF's opinion.
>
> If case law shows the FSF is mistaken, then we can revise our
> policy to match the case law. I don't want to *be* the case law.

Could it be possible that FSF does *not* wish court scrutiny of the
"pure"*** GPL under copyright and contract law?

1) Perhaps the "pure" GPL is unenforcable under contract law.

2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.

3) Perhaps the "pure" GPL is a misuse of copyright.

One thing seems certain. FSF is obviously in no hurry to find out.

Three guarantees in life:

1) Death.

2) Taxes.

3) Pigs will fly before the Free Software Foundation ever files to
enforce the mighty "pure" GPL in court.

***) In Moglen's speak. Here's some detais:

http://lwn.net/Articles/146413/

-----
LWN: So, if the kernel is covered solely by the GPL, you would see
proprietary modules as an infringement?

[Eben:] Yes. I think we would all accept that. I think that the degree
of interpenetration between kernel modules and the remainder of the
kernel is very great, I think it's clear that a kernel with some
modules loaded is a "a work" and because any module that is
dynamically loaded could be statically linked into the kernel, and
because I'm sure that the mere method of linkage is not what
determines what violates the GPL, I think it would be very clear
analytically that non-GPL loadable kernel modules would violate the
license if it's pure GPL.
-----

regards,
alexander.

--
"Eben's got more bullshit rap than Snoop Dogg. "

                                              -- day5done

[Walter van Holst-2]

> -----Oorspronkelijk bericht-----
> Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
> Could it be possible that FSF does *not* wish court scrutiny of the
> "pure"*** GPL under copyright and contract law?

Not very likely in my opinion. I've discussed the GPL v2 with a lot of fellow legal professionals and while most of them would write it in a completely different way, all of them agreed that the GPL v2 would easily be upheld in court in case of a distributor of GPL'ed code.

> 1) Perhaps the "pure" GPL is unenforcable under contract law.

It has been enforced twice now in German courts. It would be perfectly enforcable under Dutch law against distributors. It might run into problems in case of 'normal' end users, but those problems would be of a largely academic nature.

> 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.

I can't answer that since I hardly know anything about US Law, but I am pretty certain others will fill in pretty soon.

> 3) Perhaps the "pure" GPL is a misuse of copyright.

Hardly likely. Abuse of copyright is possible in cases it affects free speech or quells competition. Anyone using GPL'ed code in their own products could have known that such use would require permission in advance of the copyright holder and that such permissions can have strings attached to them.

> One thing seems certain. FSF is obviously in no hurry to find out.

Why should they? It works in practice, why bother having court cases for something that has worked fine for over a decade now? Disputes about the GPL tend to be settled out of court, keep that in mind. Apparantly all lawyers involved in every case did not expect to have a strong case in court. Court cases usually are about unclear situations, they tend not to have a very evident solution. The vast majority of GPL cases so fare were clearly evident enough that the infringing party didn't dare to go to court, despite the vagueness of the GPL's wording.

Regards,

 Walter

[Zak Greant]

Hey Larry, Greetings All,

On Aug 1, 2007, at 15:25PDT (CA), Lawrence Rosen wrote:

>> Please cite relevant published opinions and cases, not "conversations
>> with many other attorneys."
>
> Quite frankly, I'd rather hear directly from other attorneys on  
> this list
> rather than quote private conversations with LOTS of attorneys  
> going back
> many years. ***Please don't be afraid to speak up.*** The worst  
> that will
> happen is that you'll start another flame war with GPL zealots  
> about how
> important it is for the FSF to protect GPL software and the "copyleft
> philosophy" from other software regardless of what the copyright law
> actually says. :-)

I didn't ask for you to quote private conversations. That would have  
been irresponsible on my part.

> If you believe that my reading of GPLv3 or copyright law is wrong,  
> why don't
> YOU cite published opinion or case to that effect?

I am not making any assertions about your correctness or  
incorrectness or my ability to competently make a determination  
either way.

Asking people to validate claims, such as claims that there is a "...  
disagreement between Larry and most other people" or claims that  
"most other people think FSF and
SFLC are wrong" is perfectly reasonable.

I wasn't attempting to address the issue of correctness or  
incorrectness. Instead, I was struck by how you countered hogwash  
with, well, hogwash.

> You know as well as I do,
> Zak, that the courts have not spoken out about these topics in the  
> open
> source context with any clarity. Asking me for case citations at  
> this stage
> is a way to shut off discussion.

I may at times give the appearance of competence, it is - sadly -  
mostly only appearance. Case law moves forward and I am often  
unaware. Perhaps I should correct this.

In the meantime, asking you (and others) to provide the rationale  
behind their beliefs isn't wrong or stifling.

Be well,
--zak

[Walter van Holst-2]

> -----Oorspronkelijk bericht-----
> Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> Verzonden: woensdag 1 augustus 2007 19:44
> Aan: John Cowan
> CC: Lawrence Rosen; License Discuss
> Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

> Do you really think that most other people here are not kind
> of puzzled by the following piece of GNU "denationalization" wisdom?
>
> http://gplv3.fsf.org/denationalization-dd2.html

What is so puzzling about it?

Regards,

 Walter

[John Cowan]

Walter van Holst scripsit:

> > 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.
>
> I can't answer that since I hardly know anything about US Law, but I
> am pretty certain others will fill in pretty soon.

I have no clue what the point of this reference is.  Section 301 says
that the Copyright Act preempts state copyright law.

> Why should they? It works in practice, why bother having court cases
> for something that has worked fine for over a decade now? Disputes about
> the GPL tend to be settled out of court, keep that in mind. Apparantly
> all lawyers involved in every case did not expect to have a strong case
> in court. Court cases usually are about unclear situations, they tend
> not to have a very evident solution. The vast majority of GPL cases
> so fare were clearly evident enough that the infringing party didn't
> dare to go to court, despite the vagueness of the GPL's wording.

Indeed.  Furthermore, as has been pointed out many times, it is suicidal
for a defendant to directly attack the GPL's validity, as without the
public license they would be exposed to the full rigor of copyright
infringement.

--
John Cowan  cowan@...  http://ccil.org/~cowan
If I have not seen as far as others, it is because giants were standing
on my shoulders.
        --Hal Abelson

[Zak Greant]

> "Eben's got more bullshit rap than Snoop Dogg. "
>
>                                               -- day5done

Daniel Wallace[0], though he has lost his court cases and related  
appeals, may find comfort in knowing that people still find him  
quotable.

--zak

[0] http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)

[Alexander Terekhov-3]

On 8/2/07, Walter van Holst <w.van.holst@...> wrote:
[...]
> > 1) Perhaps the "pure" GPL is unenforcable under contract law.
>
> It has been enforced twice now in German courts.

Here's a feedback from one German appellate judge regarding the
(first) case in Munich:

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
(The first-ever ruling on the legal validity of the GPL - A Critique
of the Case)

Pay special attention to g).

The judgment in English is here:

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL2_20040903.pdf

> > 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.
>
> I can't answer that since I hardly know anything about US Law, but I am pretty certain
> others will fill in pretty soon.
>
> > 3) Perhaps the "pure" GPL is a misuse of copyright.
>
> Hardly likely. Abuse of copyright is possible in cases it affects free speech or

Quoting from "Open Source Licensing: Virus or Virtue?" (Abstract is available at
http://www.utexas.edu/law/journals/tiplj/volumes/archives/vol10/vol10n3/nadana.html)

------
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]
------

> quells competition.

See also http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf and don't miss
references to 81 EGV and 1 GWB. Then reread
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf and
once again pay special attention to g).

regards,
alexander.

[Walter van Holst-2]

> -----Oorspronkelijk bericht-----
> Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> Verzonden: donderdag 2 augustus 2007 19:08
> Aan: Walter van Holst
> CC: Arnoud Engelfriet; Lawrence Rosen; License Discuss
> Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

> > It has been enforced twice now in German courts.
>
> Here's a feedback from one German appellate judge regarding the
> (first) case in Munich:
>
> http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
> (The first-ever ruling on the legal validity of the GPL - A
> Critique of the Case)
>
> Pay special attention to g).

Bear in mind that Hören under g) criticizes the court for judging the question of the validity of the GPL irrelevant. It nowhere says in his critique that the GPL would be invalid. In his opinion the question of the validity of the GPL is not one that is irrelevant a priori. Which is a valid point, IMAO. BTW, I find it somewhat misleading that you call Hören an appelate judge (which he is), the article clearly states that it is written in his role as visiting professor. It is exceedingly bad form for judges to criticize other judge's decision, unless asked to do so in a higher court.

> > > 3) Perhaps the "pure" GPL is a misuse of copyright.
> >
> > Hardly likely. Abuse of copyright is possible in cases it
> affects free
> > speech or
>
> Quoting from "Open Source Licensing: Virus or Virtue?"
> (Abstract is available at
> http://www.utexas.edu/law/journals/tiplj/volumes/archives/vol1
> 0/vol10n3/nadana.html)

- snip -

Interesting and possibly flawed analysis, but that is not the point here. First of all I have to apologize for construing an apaprant American concept under Dutch law without hesitating to think about what you might have meant. The doctrine of misuse as you know it is not a doctrine I am familiar with under Dutch law or any other continental European law system I know of. We do have a generic 'misuse of right' doctrine, the GPL would clearly fall outside its scope. You may have or not have a point here about misues under American copyright law (I'd be delighted to hear Lawrence's opinion on this).

Regards,

 Walter

[Arnoud Engelfriet-2]

John Cowan wrote:
> Indeed.  Furthermore, as has been pointed out many times, it is suicidal
> for a defendant to directly attack the GPL's validity, as without the
> public license they would be exposed to the full rigor of copyright
> infringement.

It does make sense, if you regard the GPL as a contract: you
would then attack the obligation to release source (or whatever
bothers you) as being invalid, and ask for the rest of the
contract to remain in force.

This presumes that the clause is severable and not so central
to the whole GPL that the judge will hold the rest up, but
that's the theory.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Alexander Terekhov-3]

On 8/2/07, John Cowan <cowan@...> wrote:
> Walter van Holst scripsit:
>
> > > 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.
> >
> > I can't answer that since I hardly know anything about US Law, but I
> > am pretty certain others will fill in pretty soon.
>
> I have no clue what the point of this reference is.  Section 301 says
> that the Copyright Act preempts state copyright law.

Here is some clue... footnote 92 in BREAKING BARRIERS: THE RELATION
BETWEEN CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer:

(consider that over time, under "bazaar model" with long chain of
derivation in derivative works and additions to collective works by
different authors, GPL'd IP becomes practically locked within the GPL
pool with no practical way to obtain rights to it under terms other
than the GPL)

-----
Contracts do not involve the same basic scope or impact as do property
rights established directly by operation of common law or state statute.
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues,
that case involved the claim that a contractual restriction on the use
of an uncopyrighted database was preempted because the subject matter
of the transaction was unprotectable under copyright law.90 The court
correctly rejected this argument. It drew an explicit distinction
between a property right (potentially preempted) and a contract right.
"A copyright is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as they please,
so contracts do not create 'exclusive rights.'"91 This reflects the
transactional base of a contract and draws an important, relatively
explicit line for purposes of preemption claims. Enforcing a contract
between two parties leaves the subject matter of the contract (whether
copyrighted or not) entirely unencumbered by any contract issue as to
others not party to the transaction. Property rights and contract rights
are simply not equivalent.92

92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the
information.
-----

>
> > Why should they? It works in practice, why bother having court cases
> > for something that has worked fine for over a decade now? Disputes about
> > the GPL tend to be settled out of court, keep that in mind. Apparantly
> > all lawyers involved in every case did not expect to have a strong case
> > in court. Court cases usually are about unclear situations, they tend
> > not to have a very evident solution. The vast majority of GPL cases
> > so fare were clearly evident enough that the infringing party didn't
> > dare to go to court, despite the vagueness of the GPL's wording.
>
> Indeed.  Furthermore, as has been pointed out many times, it is suicidal
> for a defendant to directly attack the GPL's validity, as without the
> public license they would be exposed to the full rigor of copyright
> infringement.

Yeah. How nice. As if invalid and hence unenforceable licensee's
obligations/covenants can't simply be stricken out by big red marker
of justice (so to speak) without making licensees liable to
infringement.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

-------
g. Finally, there is the important question of the consequences of the
assumed invalidity of the GPL. The Munich court argued that the
question of the enforceability of the GPL was in no way relevant.
According to the Bavarian judges, if the GPL is legally ineffective,
the user does not have a license and is thus violating copyright law.
On the face of it, that sounds plausible, but it is
not. If somebody offers software on the Internet for downloading and
links the download with invalid general terms, he can hardly sue for
copyright infringement. Instead, the validity of the standard terms is
a matter for the software distributor: if he wants to use invalid
contractual terms, he bears the risk of their use. It would violate
equity and good faith if he were allowed to sue others merely on the
grounds that his license terms were invalid.
-------

regards,
alexander.

[Alexander Terekhov-3]

On 8/2/07, Zak Greant <zak@...> wrote:
> > "Eben's got more bullshit rap than Snoop Dogg. "
> >
> >                                               -- day5done
>
> Daniel Wallace[0], though he has lost his court cases and related
> appeals, may find comfort in knowing that people still find him
> quotable.

He may. Here is full quote in context:

-----
LWN: So, if the kernel is covered solely by the GPL, you would see
proprietary modules as an infringement?

[Eben:] Yes. I think we would all accept that. I think that the
degree of interpenetration between kernel modules and the remainder
of the kernel is very great, I think it's clear that a kernel with
some modules loaded is a "a work" and because any module that is
dynamically loaded could be statically linked into the kernel, and
because I'm sure that the mere method of linkage is not what
determines what violates the GPL, I think it would be very clear
analytically that non-GPL loadable kernel modules would violate the
license if it's pure GPL.
-----

day5done commented:

-----
Analytically, the above would be true only if the first Nth
hyperbolic cosines of the address registers are congruent (in a
Hilbert Space) to the metric tenor of the hard drive space when
mapped one to one onto (or is it into?) a finite but unbounded
timelike manifold.

Eben's got more bullshit rap than Snoop Dogg.
-----

>
> --zak
>
> [0] http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)

Hey Zak, are you still at MySQL?

I'm asking because MySQL must be truly excited regarding Seventh
Circuit's interpretation of the GPL...

------
Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge. Does the provision of copyrighted software
under the GNU General Public License ("GPL") violate the federal
antitrust laws? Authors who distribute their works under this license,
devised by the Free Software Foundation, Inc., authorize not only
copying but also the creation of derivative works—and the license
prohibits charging for the derivative work. People may make and
distribute derivative works if and only if they come under the same
license terms as the original work. Thus the GPL propagates from user
to user and revision to revision: neither the original author, nor any
creator of a revised or improved version, may charge for the software
or allow any successor to charge. Copyright law, usually the basis of
limiting reproduction in order to collect a fee, ensures that open-
source software remains free: any attempt to sell a derivative work
will violate the copyright laws, even if the improver has not accepted
the GPL. The Free Software Foundation calls the result "copyleft."

[...]

Linux and other open-source projects have been able to cover their
fixed costs through donations of time
------

See?  Original authors can't sell either. It's all donated.

:-)

(It was real fun to watch groklaw crowd loudly complaining about
"Horrible interpretation of the GPL" by EASTERBROOK.)

regards,
alexander.

[Walter van Holst-2]

> -----Oorspronkelijk bericht-----
> Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> Verzonden: donderdag 2 augustus 2007 19:40
> Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

> (consider that over time, under "bazaar model" with long
> chain of derivation in derivative works and additions to
> collective works by different authors, GPL'd IP becomes
> practically locked within the GPL pool with no practical way
> to obtain rights to it under terms other than the GPL)

And what would the _legal_ problem be with that? Or would you suggest some essential facilities alike doctrine to apply to GPL'ed code? I am not sure whether Richard Stallman, Bill Gates or Larry Ellisson would approve of your line of thinking. And by the time you might get Bill, Larry _and_ Richard Stallman to agree together on disagreeing with you, it might be recommended to consider the option of just being wrong.

> -----
> Contracts do not involve the same basic scope or impact as do
> property rights established directly by operation of common
> law or state statute.

- snip -

The fact that you can't create absolute rights (against the world) through contracts alone does not imply that any similar relative rights (between parties) cannot be created either. You are referring to proCD versus Zeidenberg, I can't find anything in that decision that you can't expand property rights through contractual rights between the parties of that contract. Feel free to enlighten me though.

Regards,

 Walter

[Ben Tilly]

On 8/2/07, Alexander Terekhov <alexander.terekhov@...> wrote:
> On 8/2/07, Zak Greant <zak@...> wrote:
[...]

> Hey Zak, are you still at MySQL?
>
> I'm asking because MySQL must be truly excited regarding Seventh
> Circuit's interpretation of the GPL...
>
> ------
> Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
>
> EASTERBROOK, Circuit Judge. Does the provision of copyrighted software
> under the GNU General Public License ("GPL") violate the federal
> antitrust laws? Authors who distribute their works under this license,
> devised by the Free Software Foundation, Inc., authorize not only
> copying but also the creation of derivative works—and the license
> prohibits charging for the derivative work. People may make and

Easterbrook is wrong on a basic point of fact.  The license does not
prohibit charging for the derivative work, and many people have
charged for such derivative works.  Not the least of these being the
Free Software Foundation itself.

Which raises an interesting question.  Suppose that I was a judge in
the 7th circuit.  Am I bound by this part of the opinion even though
it depends on an incorrect understanding of the facts?

(I'll note that the rest of the opinion upheld the GPL as being safe
from anti-trust challenges.  Which is the opposite of what you'd like
to see.)

[...]
> (It was real fun to watch groklaw crowd loudly complaining about
> "Horrible interpretation of the GPL" by EASTERBROOK.)

Well of course they would complain about him having such a common
misunderstanding of what the GPL says.  It is an elementary mistake
that many make, and I blame the lawyers for not having done a better
job in bringing the true facts to bear.

Cheers,
Ben