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


From: David Kastrup
Subject: Re: [FYI] DANGEROUS LIAISONS – SOFTWARE COMBINATIONS AS DERIVATIVE WORKS?
Date: Fri, 04 Aug 2006 14:26:48 +0200
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Alexander Terekhov <address@hidden> writes:

> -------
> 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.

Not at all: creators of derivative works have all the exclusion rights
they want to and more.  In fact, they are excluded from distributing
the combined product under terms different from the GPL.

Which is common practice for software, except that usually the
creators are excluded from distributing the combined product under
_any_ terms.

> 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,

Which is nonsensical since the term "derived work" encompasses exactly
that which the law calls "derivative works".  The GPL does not seek to
change the definition of the law, and indeed it states:

      5. You are not required to accept this License, since you have
    not signed it.  However, nothing else grants you permission to
    modify or distribute the Program or its derivative works.  These
    actions are prohibited by law if you do not accept this License.
    Therefore, by modifying or distributing the Program (or any work
    based on the Program), you indicate your acceptance of this
    License to do so, and all its terms and conditions for copying,
    distributing or modifying the Program or works based on it.

So the GPL, by explicit statement and nature, is restricted to the
scope of copyright law.  Copyright misuse is not possible.

> 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

One could try arguing that the FSF's interpretation of the scope of
copyright law is broader than the common legal interpretation.  But
since that interpretation is not ingrained into the GPL, the GPL can't
be faulted for it.

> 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.

But they are allowed to continue pursuing their own models.

> Also, more and more companies use the GPL for purposes other than
> idealism.

The GPL detractors really need to focus whether they want to claim
that using the GPL can't be economically feasible or that it can.

> 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.

But the GPL explicitly states that you are not required to accept it,
so it can't exceed the boundaries of the copyright act.

> 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.

This is nonsensical.  The GPL can't be blamed for being interpreted
wrongly when it just refers to copyright law.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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