Re: [FYI] DANGEROUS LIAISONS – SOFTWARE COMBINATIONS AS DERIVATIVE WORKS?

[Alexander Terekhov]

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b) Copyright Misuse

By imposing GPL § 2(b) on licensees, copyright owners try to magnify
their rights beyond those sanctioned by the Copyright Act in two
different ways. First, Section 103 of the Copyright Act allocates
ownership rights to authorized derivative works to the author to
incentivize further investment in additional creativity.274 In contrast,
Section 2(b) of the GPL, requires creators of derivative works to
forfeit their exclusion rights and any chance to generate licensing
revenue.275 Second, if the term “derived work” were found to encompass
more than “derivative works” and included, for example, compilations and
other forms of software combinations, Section 2(b) of the GPL would seek
to prohibit activities that Section 106 of the Copyright has not
reserved for copyright owners and thus exponentially increase the impact
caused by the first copyright magnifying mechanism.276

Given the fact that copyright misuse is an equitable concept under U.S.
law, it is difficult to predict if and how a court would apply this
doctrine in the context of the GPL. On one hand, the non-profit status
and idealistic goals pursued by the proponents and original adopters of
the GPL may sway courts in favor of the GPL. On the other hand, the
“copyleft” policy manifested in the GPL seems a more direct attack on
the delicate balance between access and protection in the Copyright
Act277 than any other licensing practice that has so far caused courts
to find copyright misuse.278 In fact, the intended objective behind
Section 2(b) of the GPL is to eliminate the effects of copyright
protection for computer programs and generally replace it by the rules
of the GPL.279 This flies in the face of the many decisions by U.S.
courts that found it necessary to protect economic interests of software
copyright owners who pursued proprietary licensing models.280 Also, more
and more companies use the GPL for purposes other than idealism. If
courts enforce clauses like Section 2(b) of the GPL, they would probably
also have to accept it if proprietary software companies start
prohibiting combinations of their programs with other software beyond
the boundaries of the Copyright Act. This could have potentially
significant implications for interoperability.

Thus, for purposes of U.S. copyright law, Section 2(b) of the GPL seems
to raise significant issues under the doctrine of copyright misuse,
particularly, if it were interpreted to cover more than derivative works
as defined by the Copyright Act.
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regards,
alexander.