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Re: SCO laying an ambush for the GPL?


From: David Kastrup
Subject: Re: SCO laying an ambush for the GPL?
Date: 20 Jul 2004 12:05:15 +0200
User-agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.3.50

Alexander Terekhov <address@hidden> writes:

> John Phillips wrote:
> [...]
> > - It does not seem to allow anyone else (e.g. SCO) to take away and claim
> >   a valid copyright, even if the GPL is found to be a misuse.  (The rare
> >   cases seem to arise from anti-trust / competition law copyright misuse
> >   which seems not to be the case with GPL as I read it).
> 
> SCO claims are also barred by the doctrine of copyright misuse. Tenth
> IBM's defense, IIRC. Attempting to extract rights to unrelated/
> nonderivative (in the copyright sense, not metaphysical) constitutes
> misuse of copyright.

Probably our use of words here differs.  I'd consider it "misuse" if I
thwarted some law into an application that was nominally covered by
it, but against the spirit of the law.  Now since the GPL does not at
all impact the normal intended permissions of copyright, but merely
adds unrelated rights, I don't quite see the "misuse".

Ok, let us construe something what I'd consider labelled "misuse": you
put some obscure clauses into a contract or licence, leading the
customer to wrongly believe into being granted some rights, perhaps
together with some non-written misleading assurances.  After he has
invested consideral work into software, you then claim that he must
either licence all of it under the GPL or cease business or
something.  Now that might just qualify as misuse.  However, it would
insinuate that the conditions of the GPL were not understood because
of maliciously obtuse wording, or that some communication was made
that suggested otherwise.

However, your problem is not that RMS tries to hide and downplay
consequences of the GPL, but that he purportedly overinterprets
copyright laws.  That is not "copyright misuse", but at best an
invalid assumption.  He does not hide his intent in any manner in
advance.  If he is mistaken in his legal opinions, this does not mean
that he _misused_ copyright, but that he misunderstood or
overestimated it.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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