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Re: More FSF hypocrisy
From: |
Alexander Terekhov |
Subject: |
Re: More FSF hypocrisy |
Date: |
Thu, 26 Mar 2009 17:59:00 +0100 |
Hyman Rosen wrote:
>
> Alexander Terekhov wrote:
> > <quote source="Open Source Licensing: Virus or Virtue?">
> >
> > 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.
>
> This may in fact be true (for a change!) but until a court rules
> that way, the assumption must be that the GPL provisions are valid.
>
> Also, from "IP and antirust" by Hovenkamp, Janis, and Lemley:
> <http://books.google.com/books?id=ILcfV28n7WgC&pg=PT124&lpg=PT124&dq=patent+grantback+misuse&source=bl&ots=KCrvPfGsu1&sig=CCMAUtr8AnS46n5b6aASlIsUbx4&hl=en&ei=5q7LSdWSKKHNlQeluZHWCQ&sa=X&oi=book_result&resnum=1&ct=result#PPT126,M1>
> One significant determinant of the competitive effect of
> a grantback clause is the exclusivity of the grant of rights
> required.
> ....
> Nonexclusive licenses should almost never cause competitive
> concern.
>
> And from the DOJ and FTC "Antitrust Guidelines for the Licensing
> of Intellectual Property":
> <http://www.usdoj.gov/atr/public/guidelines/0558.pdf>
> In the vast majority of cases, restraints in intellectual
> property licensing arrangements are evaluated under the rule
> of reason. The Agencies' general approach in analyzing a
> licensing restraint under the rule of reason is to inquire
> whether the restraint is likely to have anticompetitive effects
> and, if so, whether the restraint is reasonably necessary to
> achieve procompetitive benefits that outweigh those
> anticompetitive effects.
>
> I am reading these excerpts as indicating that a copyright misuse
> claim will fail against the GPL.
What part in
"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]
[...]
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."
don't you understand, stupid Hyman?
Here's more:
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."
To repeat:
<quote source="Open Source Licensing: Virus or Virtue?">
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.
</quote>
regards,
alexander.
--
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.)
- Re: More FSF hypocrisy, (continued)
- Re: More FSF hypocrisy, Rjack, 2009/03/25
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Rjack, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Alexander Terekhov, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy,
Alexander Terekhov <=
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Alexander Terekhov, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Alexander Terekhov, 2009/03/26
- Re: More FSF hypocrisy, Rjack, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Rjack, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26
- Re: More FSF hypocrisy, Rjack, 2009/03/26
- Re: More FSF hypocrisy, Hyman Rosen, 2009/03/26