Copyright Misuse and the GPL
Let's explore whether the GPL is a copyright misuse. Copyright misuse is a legal doctrine. It was created as an analogy to the patent misuse doctrine. In both cases, it attempts to prevent a copyright holder from exerting greater rights to stuff (a legal term of art) that isn't protected under copyright/patent law than the actual rights that exist by virtue of being a copyright/patent holder.An example might be useful. Suppose someone develops and patents a salt spreader. That company then refuses to sell the salt spreader unless the purchaser also agrees to purchase salt from the company. In effect, to get the use of a patented product (the machine), one is required to buy a non-patented substance (salt). That, in the eyes of the law, is patent misuse.
The first well-known case, as far as I know, that applied the copyright misuse doctrine is Lasercomb America v. Reynolds, a 1990 Fourth Circuit opinion. In that case, Lasercomb created a CAD software product that made steel rule dies. Steel rule dies are used to cut and score cardboard and paper for making boxes. Lasercomb offered to license, and actually licensed to some customers, the software product. In its license agreement, it provided that the licensee agreed not to develop a competitive product for 99 years. At the time, the copyright period for the software was less than 99 years.
The Fourth Circuit held that the presence of this clause was a copyright misuse, which created a defense to a copyright infringement claim. In rendering its decision, the court asked the question whether Lasercomb was using its copyright "in a manner contrary to public policy...." In effect, the Court stated that exercising rights not available to one under copyright may be a misuse, which creates a copyright misuse defense. (Note also that the Court stated that such a defense does not invalidate the copyright. The copyright can still be exercised if the offending action is stopped.)
Let's translate that to the GPL. The GPL in essence states that a licensee is not authorized to copy or distribute code unless the licensee does certain things. Therefore, the licensor is exercising its exclusive rights (the right to copy and distribute) in creating certain conditions to copying and distribution. This is potentially similar to a named user restriction in a proprietary-type software licensing scheme.
What the GPL does may be different from a restriction that lasts longer than the period that copyright protects the code, and therefore not subject to the copyright misuse doctrine.
Let me have your thoughts.
31 Comments:
This is about FSF's position/intent/goals/you-name-it
and their attempts to expand the scope of reciprocation
beyond derivative works (Bearbeitung/Umgestaltung in
Germany) under copyright law under which things like
linking are totally irrelevant (software is protected
as *literary* works... modulo filtering along the lines
of the AFC test in US).
http://www.xfree86.org/pipermail/forum/2004-March/004248.html
http://groups.google.de/groups?threadm=40EE745B.7A2ED0DF%40web.de
Here's more:
http://www.law.berkeley.edu/journals/btlj/articles/vol15/frischmann/frischmann.html
----
Courts and commentators have attempted to
distinguish the copyright misuse defense from
antitrust law by focusing on the equitable
nature of the doctrine as a clean hands
defense and on the scope limitation function
that it provides.150 Inequitable conduct on
the part of the copyright holder need only
offend the public policy behind the copyright
system to trigger the defense.151 As the
Fourth Circuit noted in Lasercomb:
[A] misuse need not be a violation of
antitrust law in order to comprise an
equitable defense to an infringement action.
The question is not whether the copyright is
being used in a manner violative of antitrust
law (such as whether the licensing agreement
is “reasonable”), but whether the copyright
is being used in a manner violative of the
public policy embodied in the grant of a
copyright.152
Courts applying this rationale have looked
specifically at copyright licensing
provisions and decided whether the scope of
the “limited monopoly” granted by the
copyright is being expanded.
---
Now, apropos "offend the public policy behind
the copyright system"
http://emoglen.law.columbia.edu/publications/dcm.html
http://emoglen.law.columbia.edu/my_pubs/anarchism.html
I also like this: (quoting frischmann)
---
In all three cases, the copyright was used as
leverage to gain competitive advantage over
licensees in areas beyond the scope of the
limited privileges conferred by the copyright
---
Here we go:
http://www.mail-archive.com/license-discuss@opensource.org/msg06852.html
(quoting Moglen)
---
A library linked to a program? (i.e., Is this
a derivative work of the program?)
Moglen: Code statically linked to code
constitutes a derivative work of the code to
which it is linked, without question,
regardless of license terms. More
specifically, now regarding licensing as well
as the status of the work, code that cannot
be used at all unless dynamically linked to
GPL'd code, and which is distributed along
with that GPL'd code, must be distributed
under the terms of the GPL. This provides
a competitive advantage to free software,
requiring those who wish to make unfree
software to undertake proprietary
reimplementation of feature sets only
available in GPL'd libraries, such as GNU
readline.
---
regards,
alexander.
Before we get too far down the path analyzing this issue, I have three questions.
First, if you are a company looking to use open source in your internal operations, do you care whether the GPL is subject to the copyright misuse doctrine or not?
Second, if you are a company looking to use open source as a part of your business model (e.g., give away the software, sell the services), do you care whether the GPL is a copyright misuse or not?
Third, if you are a company developing a proprietary software package for license (for a fee), do you care whether the GPL is a copyright misuse or not?
Unlike you IANAL however your analysis of copyright misuse and the GPL seems slightly reductionist and therefore it doesn't seem satisfactory to say "OK let's leave that to one side". I think you have to resolve "de jure" before you can discuss "de facto" as otherwise the discussion is without a foundation.
It seems to me that the missing element in your discussion somehow relates to the commons created by the collectivisation of IP owned by lots of copyright holders - "in return for letting you have my ideas to enable your ideas to work I want you to behave like this" I am happy that you might not want to behave like this, but then I must ask you not to use my ideas - I am not compelling you to do anything - I am not tying you to anything - you can go where you like but you can't just take my IP with you.
The salt argument seems to fail for me because there is no collectivisation and I am compelling you to do something that you shouldn't have to be compelled to do
The GPL only applies to the source code it covers, so it is different the the copyright misuse example that you gave where the offending license applied to potential products other than the product with which it came. The GPL only affects the rights of the user with regards to code it covers, and nothing else. It in no way affects the rights of the user to do anything else.
The only time that the license of GPL application would be a threat to a company is if that company was trying to use the code directly in the source of it's own software. The GPL simply prevents capitalists from profiteering with software that has been created in good will.
You can use and distribute GPL covered applications alongside commercial applications, so at the same time a company could make use of Free software in places where it provides a good solution that compliments their own applications.
Of course, in commercial software development houses, there has to be the management concern that employees might illegally incorporate GPL code into the company's own proprietry application code (perhaps to take development shortcuts). Doing so and being found out would be disasterous for any company because their software would then effectively have to become Free under the terms of the GPL. But that is not preventing any company from creating competitive software. It only prevents them from abusing existing Free software.
NB. I say Free software instead of open source software, because they are two different things. Open source software is not always Free (although Free software is always open source). Refer to this page for a verbose explanation:
http://www.gnu.org/philosophy/free-sw.html
> Let's translate that to the GPL. The GPL in essence states that > a licensee is not authorized to copy or distribute code unless > the licensee does certain things.
Or more accurately does *not* do certain, things which is resctrict these rights for any subsequent users.
This has been wrongly interpreted in extreme cases to mean "you must open things of your own". It's not too different from someone saying "free for non-commercial use" in theory.
>First, if you are a company looking to use open source in >your internal operations, do you care whether the GPL is >subject to the copyright misuse doctrine or not?
No, since I'm not bound to do anything unless I share the code again, with enhancements, or derive something to share (or sell) from the code. Anyone can use it without caring about this responsibility. If you tweak code to work better for you, or within your environment, you are your own 3rd party.
>Second, if you are a company looking to use open source as a >part of your business model (e.g., give away the software, >sell the services), do you care whether the GPL is a >copyright misuse or not?
Yes if I have modified it. This introduces a third party. I should know what my obligations are to them, or rather what their rights are, and the rights of prior authors.
If I ship it as is, I should be aware of what I am handing off to my customer, they should understand what they can and can't do with the source (that I owe them whether I make changes or not).
>Third, if you are a company developing a proprietary software >package for license (for a fee), do you care whether the GPL >is a copyright misuse or not?
Only if I want to use portions of GPLd code within my own, or put closed code within GPL'd code.
This is a great blog, BTW. Your question of "any third party" is great since it's written that way. In the FAQs, FSF clarifies that to mean direct and indirect licensees. If that's true, they should word it that way.
I think the murkyest area is cluase 5:
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.
As under fairuse, etc. you are likly
allowed to make some copies and changes to source code.
IANAL so I do not know what these exact rights are.
But is all the actions a company/ person takes are
permitted by fair use, etc. then one has not taken an
action to invoke the GPL, otherwise the GPL would
be copyright misuse. Thus there are cases I think that
one could rule out this clause, and thus not have the
GPL invoked, e.g. distributed in a "seperate package"
other liscened patch-sets.
__
Chris
The copyright misuse doctrine is misleading. The GPL's
section:
"2 b) You must cause any work that you distribute or
publish, that in whole or in part contains or is derived
from the Program or any part thereof, to be licensed as a
whole at no charge to all third parties under the terms of
this License."
is preempted by section 301 of the Copyright Act. In one of
the most favorable decisions ever for contract rights
concerning copyrights the Seventh Circuit in ProCD, Inc. v.
Zeidenberg; 86 F.3d 1447, 39 USPQ2d 1161 stated:
"Rights equivalent to any of the exclusive rights within the
general scope of copyright are rights established by law
rights that restrict the options of persons who are
strangers to the author. Copyright law forbids duplication,
public performance, and so on, unless the person wishing to
copy or perform the work gets permission; silence means a
ban on copying. 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. Someone who found a copy of SelectPhoneTM
on the street would not be affected by the shrinkwrap
license though the federal copyright laws of their own
force would limit the finders ability to copy or transmit
the application program.... But whether a particular license
is generous or restrictive, a simple two-party contract is
not equivalent to any of the exclusive rights within the
general scope of copyright and therefore may be enforced."
A person finding a CD containing source code and a copy of
the GPL *is* affected by the license... They are invited to
join in the modification of the source code. The GPL is not
a simple "two party" contract. It is a recursive multi-party
contract of adhesion that attempts to publicly regulate
derivative works.
From the GPL:
"Thus, it is not the intent of this section to claim rights
or contest your rights to work written entirely by you;
rather, the intent is to exercise the right to control the
distribution of derivative or collective works based on the
Program."
Here's some of what Congress had to say concerning section
301:
"The intention of section 301 is to preempt and abolish
any rights under the common law or statutes of a State that
are equivalent to copyright and that extend to works coming
within the scope of the Federal copyright law. The
declaration of this principle in section 301 is intended to
be stated in the clearest and most unequivocal language
possible, so as to foreclose any conceivable
misinterpretation of its unqualified intention that Congress
shall act preemptively, and to avoid the development of any
vague borderline areas between State and Federal
protection."
There are few sure bets in this world but here's one:
The GPL's section 2 b) is D.O.A. in a Federal Court of
Appeals.
Thanks, everyone, for participating. This is the kind of dialog I hope to have on this blog.
Let me respond to some of what's been said.
So far, at least with respect to a LEGAL analysis of the GPL and comparing it to the one case, Lasercomb, I'm not convinced that the copyright misuse doctrine applies to the GPL. So I tend to agree more with Charles than Alexander. (I'm willing to be convinced otherwise if there's case authority that suggests I should change my mind.)
From a legal standpoint, the most important matters to consider are what copyright misuse means, as fleshed out by courts, and the language of the GPL. Next would be the FSF FAQ. Statements made on web sites, or other media, about intent will have a very limited effect on a Federal judge in the U.S. Accordingly, I discount (respectfully, of course) Alexander's arguments in this particular part of the blog. However, Alexander is intellectually challenging in what he brings to the table -- something that is good for this blog.
Anonymous at 2:54 PM has some interesting arguments, which I may not fully understand. However, from a pure legal standpoint, the fact that my analysis (so far) ignores the "commons created by the collectivisation of IP" doesn't bother me. I haven't seen courts that decide on this basis, either. Since IIAL (is that an acronym?), what can be critically important to the spirit of the free software movement is of lesser concern to me.
The purpose of this blog is to raise legal, practical and business issues associated with using F/OSS, so when people (especially legal counsel with clients who ask these questions and senior IT management) wonder about a particular issue, they can see it debated and maybe even resolved here. So, Anonymous at 2:54 PM, you make some important philosophical points, but they aren't points that hold much legal weight in a court, IMHO. (Please understand that I'm not trying to be mean-spirited here.)
Charles, thanks for contributing. I have no disagreement with anything you have said. I've read the GNU philosophy, and you are right that I haven't made the distinction between free software and open software that is so important to some people. I'll try to do better.... So far, most of my topics have been on the GPL, so even when I say open software I'm usually referring to the subset that is free (libre).
Anonymous at 4:06 pm., thanks for trying to answer the questions I posed. I believe that from a practical standpoint, these questions are what really matter to someone considering whether to use open source.
I agree with you on your answer to the first question, that for use for internal operations only, the copyright misuse doctrine doesn't make any difference to them. Who cares whether the GPL is enforceable or not if you are only going to use it internally?
I also like your answer to the second question. If you are just giving the software away and then selling services, maybe you don't care whether the GPL is enforceable or not, except for an interest in preserving the free software community. Other business models that you mentioned need to be more careful.
On the third question, the proprietary software vendor, copyright misuse may be a defense to a mistake made by a programmer. That'd be my only addition to your thoughtful answer.
Thanks for everyone's participation!
It is certainly refreshing to see alexander finally learn from an attorney that his ideas on the GPL are of no value, I must say.
However, there is a good deal of additional claptrap about the GPL on display here, in addition to the useful comments. Some may share his intense desire that the GPL be unenforceable (can you think of any companies that might hope you can find some way to make it so?)
This post has been removed by a blog administrator.
This post has been removed by a blog administrator.
And if a court found the GPL to be copyright misuse, what rights would the copying party have to the code in question?
I am not asking what fines they could avoid, only, after all is said and done, would they have rights to copy the work of someone else without permission?
A Nony Mouse
TO: 10:00 AM, Anonymous said...
The copying party could obtain all rights within the
failed license grant of rights (scope). The copying party
would have to file an action for promissory estoppel.
Under Utah law, the elements of promissory estoppel are:
"(1) The promisee acted with prudence and in reasonable
reliance on a promise made by the promisor;
(2) the promisor knew that the promisee had relied on the
promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or
a third person;
(3) the promisor was aware of all material facts; and
(4) the promisee relied on the promise and the reliance
resulted in a loss to the promisee."
---J.R. Simplot Co. v. Sales King Int'l, Inc., 17 P.3d 1100,
1107 (Utah 2000).
See also:
Restatement (Second) of Contracts
ARTICLE 90
Promise Reasonably Inducing Action or Forbearance:
(1) A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or
a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by
enforcement of the promise. The remedy granted for breach
may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is
binding under Subsection (1) without proof that the promise
induced action or forbearance.
"The copying party could obtain all rights within the failed license grant of rights (scope). The copying party would have to file an action for promissory estoppel."
And under the GPL, what do you see these rights as?
A Nony Mouse
TO: 11:24 AM, Anonymous said...
From the GPL:
"GNU GENERAL PUBLIC LICENSE TERMS AND CONDITIONS
FOR COPYING,DISTRIBUTION AND MODIFICATION...
Activities other than copying, distribution and modification
are not covered by this License; they are outside its scope...
2. You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above,"...
The scope of a copyright license is exactly the rights
explictly set forth, any right not specifically described
is forbidden. Silence is a denial of permission.
Let me see if I understand you:
'From the GPL:
"GNU GENERAL PUBLIC LICENSE TERMS AND CONDITIONS
FOR COPYING,DISTRIBUTION AND MODIFICATION..."'
Are you saying that someone who violates the GPL, but then goes through the motions you propose, would then have the rights to copy, distribute, and modify my work with no further restrictions on them?
They could include the code I intend to be Free and lock it up with another license?
A Nony Mouse
>"Are you saying that someone who violates the GPL, but then
>goes through the motions you propose, would then have the
>rights to copy, distribute, and modify my work with no
>further restrictions on them?"
I am saying in the case of the GPL that section 2 b)'s
provisions are unenforcable. I would never advise
anyone to deliberately violate the terms of a
copyright license and wait to be sued for breach
of contract so they might file a promissory estoppel
action... that's a very risky strategy. The penalty
could be drastic if you're wrong. The corporate world has
the legal resources to do this.
In the case of IBM will say that they were "buying" access
to GPL'd code permissions (via promissory estoppel) in
2000 when they made their first donation to the Linux
kernel. IBM (and Microsoft, Sun etc.) knew full well the GPL
was fatally flawed. Any "public" license designed to control
derivative works is contrary to public policy as set forth
in section 301 of the Copyright Act.
A Nony Mouse,
You have identified yourself as an author of the GPL. I recognize that "on the Internet no one knows you are a dog"; however, your comments also seem well-informed. So I'm (at least for now) going to take you at your word.
I'm honored and privileged to have you post to this blog. Thanks for taking an interest in what is being said here.
I group posts here into 4 groups. Those that need no response. Those that can be responded to quickly. Those that others adequately respond to. And those that require some study, research, or contemplation. Your posts generally deserve to be in the latter category, at least regarding my own interaction with the blog. I will respond to much of what you say here, but it may take a little while.
Based on my reading of Lasercomb, in the event that the GPL was found to be a copyright misuse, then the copyright holder would be unable to enforce its rights under its copyright. Accordingly, anyone would be able to do anything with the code: copy it, distribute it, make derivative works, etc. It would be the equivalent to the code being in the public domain (until the clause(s) that caused the copyright misuse were resolved).
I believe, from a pure copyright perspective, that would mean that someone then could put the code in a derivative work and then copyright that derivative work. In other words, the concept of copyleft would go away.
I like gumout's analysis of promissory estoppel, but I haven't considered that as a legal doctrine enough in this context to comment yet.
Thanks again for posting.
gumout,
I'd like to explore both your preemption comment as well as promissory estoppel. I'd like to move the preemption issue into its own discussion.
It may be that I just have a headache today (not related to the blog), but I'm having trouble with understanding your comments about promissory estoppel.
Suppose that a company gets a copy of code that is subject to the GPL. The company then wants to make a derivative work of it and license it as a purely proprietary software product. I certainly understand your reticence in advising a client that this course of action is OK, given that there is a license out there that specifically says the company can't do this -- even if you're convinced that the GPL is preempted by the Copyright Act and even if you're convinced that the copyright misuse doctrine applies.
Where I'm confused is why the company would bring a promissory estoppel action. First, I'm not sure where the promise is that was relied on by the company. Second, I don't see where there is any reliance on a "promise" by the company. Who made what promise to whom and when?
I would understand an attempt by the company to bring a declaratory judgment that the GPL was either preempted or subject to the copyright misuse doctrine, or both (which may or may not work depending on whether the requirements for bring a declaratory judgment are satisfied). I just don't understand promissory estoppel in this context.
Seek first to understand, then to be understood. Help me understand this, gumout.
(For those of you whose eyes are glazing over at all the legal mumbo-jumbo, I or others will try to summarize the issues once we've had more dialog. For now, understand that these legal issues are undecided by the courts at the moment, and how these legal issues are ultimately decided might have a significant impact on the free software movement.)
9:42 Anonymous,
I'm not as confident as you that Alexander's ideas have no value, even his legal points. Part of the reason for my thoughts on this will be developed in a discussion of the GPL and international law. Stay tuned.
'You have identified yourself as an author of the GPL. I recognize that "on the Internet no one knows you are a dog"; however, your comments also seem well-informed. So I'm (at least for now) going to take you at your word.'
This is certainly true (dog comment). I think you misunderstood my words, or I seriously mis-stated myself.
I am in no way an author of the GPL. I am an author of software that I release under the GPL. At this point, not big time GPL software either. Sorry for the mis-communication.
I am trying to be serious about the discussions here though and appreciate your kind words.
A further question or two.
I take it you think certain parts of the GPL will not hold up in court in the USA at least.
Do you think you understand what the people who wrote the license wanted to accomplish? And what we software authors are making our code "copylefted" for?
If so, and you think the GPL is not the way to do it, do you have any better ideas on how we may accomplish our aims?
A Nony Mouse
TO: Paul Arne
Let's say the GPL is declared unenforcable because of the
SCO action.
IBM has invested several billion dollars in Linux code
developement and use because of GPL promises. (This is
known as "good faith detrimental reliance". ("good faith"
my butt... but that's another story)
Now all those GPL code contributors to the Linux kernel are
PO'd because their license is broken and they want their
copyright permissions withdrawn. They say "the GPL is
unenforceable and we'll sue for infringement if anyone
continues to use our code".
IBM says "we spent several billion dollars relying on your
(now broken) GPL promises. We'll file an action for
promissory estoppel (promissory estoppel is a plaintiff's
cause of action) and use the resulting ruling as a defense
against your suit for infringement.
That's a simplification. IBM is actually asking the court
to place the GPL'd code in the public domain (right under
everyone's nose... what chutzpah!).
From the SCO v. IBM suit in IBM's counterclaims:
"27. The Linux kernel ... The Linux developers' public
agreement to apply GPL terms expresses in a binding legal
form the conscious public covenant that defines the
open-source community -- a covenant that SCO itself
supported as a Linux company for many years."
Ever seen such a legal obsfucation in your life?
A general definition of a "covenant" is some form of
agreement involving promises.
COVENANT, contracts. A covenant, conventio, in its most
general signification, means any kind of promise or
contract, whether it be made in writing or by parol.
--- 1 Hawkins P. C.
"The Linux developers' public agreement to apply GPL terms
expresses in a binding legal form" is the very essence of
the legal definition of a covenant or contract involving
"promises".
The exact terminology isn't important . What's important is
that "legally binding promises" are made that lead to
enforcement under common (state) law.
Next look at "conscious public covenant". This is the
equivalent of saying "deliberate public promise". A
"charitable subscription" by each kernel contributor.
In other words it's just one big public charitable trust for
all ("share and share alike"... the FOSS credo).
From the GPL:
"By contrast, the GNU General Public License is intended to
guarantee your freedom to share and change free software--to
make sure the software is free for all its users."
Restatement (Second) of Contracts
ARTICLE 90
Promise Reasonably Inducing Action or Forbearance:
(1) A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or
a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by
enforcement of the promise. The remedy granted for breach
may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is
binding under Subsection (1) without proof that the promise
induced action or forbearance.
We see:
(2) A charitable subscription or a marriage settlement is
binding under Subsection (1) without proof that the promise
induced action or forbearance.
IBM is setting the stage for using the source code in the
kernel without having to prove "that the promise induced
action or forbearance." This eliminates the need to file for
"promissory estoppel" against each individual kernel
contributor.
This is just a convoluted re-hash of the "Cy Pres" doctrine.
PS: I noticed your comment on not advising a client... I'm a
lowly, old and definitely retired physicist.
Thoughts on something along these lines:
I am an author.
I license my software for use at a penny a copy but you have to get your copies from me.
I state an offer to extend to any party the right to make and sell copies for one thousand dollars a copy, sign on the dotted line and no further negotiations required, or we can negotiate a lower price per copy.
I also state an offer to allow any paid up user who is also an author to make a derivative work of mine for 2 pennies per copy and the rights to make my own derivatives of his derivatives or two thousand dollars a copy and I have no rights to make derivatives of his derivatives. Again, sign and go or the option is open to negotiate a better price.
Adjust monetary figures to make sense.
Do you see something like this falling under the same stated possibility of copyright misuse?
If so, why? if not, why not?
A Nony Mouse
>I take it you think certain parts of the GPL will not hold up in court in the USA at least.
A Nony,
Actually, I'm leaning the other way. However, in my day job this kind of opinion is not that important. What is important to me is that it is undecided by the courts, there are arguments either way, and therefore there is risk either way.
Where I put bread on the table is in identifying risk, helping to quantify it, and indentifying its implications to users and developers of technology.
On this blog, I've taken it upon myself to help flesh out the issues and discuss them. (Not that I won't take a position from time to time.)
Paul
Paul,
here is a quote from the start of this thread:
"In both cases, it attempts to prevent a copyright holder from exerting greater rights to stuff (a legal term of art) that isn't protected under copyright/patent law than the actual rights that exist by virtue of being a copyright/patent holder."
Let's try and pick at this in the case of copyright.
Prevent copyright holder from exerting greater rights to "stuff" that isn't protected under copyright law than the actual rights that exist by virtue of being a copyright holder.
1. Does it prevent me as a copyright holder from exerting greater rights to "stuff" that is protected under copyright law than the actual rights that exist by virtue of being a copyright holder?
Or is this a loophole or covered by some other doctrine?
In the case of the GPL, it seems we are trying to exert rights over things that are protected under copyright law - that is, our copyrighted works. (It is another discusison as to if we are trying to exert greater rights than those that actually exist by virtue of being a copyright holder.)
2. If the answer to 1. above is yes, doesn't that take all EULAs (or at least all shrinkwrap EULAs) down under the same theory? At least the GPL guys are trying to control copying of their works. The standard EULA boys are trying to exert rights to control USE of their works as well as copying of their works.
IIRC, at least in some parts of the world, this arises because of the fact that to use a program, it normally has to be "copied" from storage to working memory (say hard disk to ram) and this is one of the technical issues that give EULAs teeth. Personally, I think this is bogus as not allowing the copy for use in this way would mean they sold me a product that cannot work. Sort of like saying that when you open a book in the light, a copy is made in the electromagnetic spectrum and also on the readers retina which violates my copyright, but in any case, do I remember this correctly?
I hope that this site does well and brings understanding to many (including myself.)
A Nony Mouse
There is a lot of detailed and, frankly, confusing discourse on this page. But a lot of it smells to me like red herring.
In my simple-minded understanding of it, this is what the GPL is saying:
(GPL summarised:)
I have written a work.
As the author, I own the copyright, therefore only I am allowed to make any copies of it.
If you want to make a copy of it, I will let you do it by granting you a 'licence to copy'. This is my right as the copyright owner, and I offer that licence to all and sundry.
This licence is a gift from me personally to you personally and I may choose to revoke it at any time, for any reason (or even for no reason). This also is my right as the copyright owner.
I will definitely revoke my licence to you if you do not abide by the GPL. (This is like when I offer visitors to my house a licence to visit. If they don't abide by my rules, then the must go, the licence has been revoked. The fact that they got a foot in the door doesn't give them a right to stay.) Specifically, I want you to provide the source code with the binaries, and I want the GPL licence to be the only licence that is used when re-distributing the work.
I don't care how you you use the work.
I don't care if you make changes to the work.
I don't care if you don't let anyone see the changes you have made.
I do care if you distribute copies of my work because I am the copyright owner and that is my right.
I do care if you make changes to my work and distribute copies of them because I am the copyright owner of the original work, and that is my right.
In either of the above cases, I will revoke my licence to make copies UNLESS the GPL licence is applied to the copies that you are distributing. If, however, you are happy to abide by the GPL, then I am happy to continue to grant that licence to you. (Remember, the licence is a gift from me, not a contract or an agreement).
(End GPL summarised)
People do not seem to not understand that a copyright owner is the only person who has the right to make copies of that work. No-one else is allowed to without express permission of the copyright owner. Some authors and certainly some music composers REFUSE to allow their works to be redistributed at all, and that is their right. That is the power and the purpose of copyright. People only get confused when they forget that profit motive is not the be-all and end-all of authorship, nor of copyright.
The argument of fair use only goes so far. It is not fair use to copy and distribute entire works without the agreement of the copyright owner, not even for study. It is not fair use to modify a work and then distribute modified copies without the agreement of the copyright owner, not for any reason. Only the GPL gives you that right. Without it, you have no right at all. And the GPL is granted by the copyright owner provisional on the licencee abiding by its conditions.
The GPL is also not copyright misuse, because it takes away no rights the licencee, or any third party. Without the GPL, no other party has a right to make or distribute copies, and certainly no right at all to distribute modified copies. Thus the GPL is granting rights (which is the correct meaning of a licence), not taking away rights. This is why it is not copyright misuse.
Now all of the above is simple-minded and non-legal. But it is the INTENTION of the GPL. In the simple-mindedness is revealed the strength of the argument. All the legalese makes for muddying the water, but an obfuscated argument is not a solid argument. There are some who say that the GPL has never been tested in court. There are others who say that it has never been tested because it is so water-tight that no-one is foolish enough to try. So the only recourse one has is to spread FUD in web-blogs. It is the same with all those other legalistic twisting and turnings 'maybe if we tried pretending that patents were similar to copyright', 'maybe if we tried arguing copyright misuse', 'maybe if we tried "promisory estoppel"', 'maybe if we argued about the meaning of third parties', 'maybe if we repeat the big lie often enough' ..
If you don't want to abide by the GPL, then just write your own code. The only people who don't like the GPL are people who want to take the fruits of other people's work to create fruit which they don't have to share. In other words,
have their cake and eat it too. In other words 'what's yours is mine, what's mine is mine.' No wonder such people wish so hard for a crack in the GPL. Better than working for a living.
> It is certainly refreshing to see alexander
> finally learn from an attorney that his ideas
> on the GPL are of no value, I must say.
First off (first sale aside for a moment ;-) ),
I don't see any issues with respect to copyright
misuse and OSI's interpretation of the GPL as
articulated by the OSI's counsel in his numerous
postings to the OSI's license-discuss and his
recent book:
www.phptr.com/content/images/0131487876/samplechapter/0131487876_ch06.pdf
Contrast it with the FSF position... for example:
www.xfree86.org/pipermail/forum/2004-April/004320.html
Secondly, with respect to "learn from an attorney",
I've lerned it from "Christian H. Nadan, Director
and Associate General Counsel, Sun Microsystems,
Inc., and Adjunct Professor, University of California
Berkeley Boalt Hall School of Law. This Article
represents the views and analysis of the author
alone, and not of Sun Microsystems, Inc. The author
would like to thank Bill Lard, Mark Lemley, Sean
Hogle and Michele Milnes Nadan for their generous
assistance and thoughtful comments and suggestions."
Go read "Open Source Licensing: Virus or Virtue?".
regards,
alexander.
P.S. Read also
groups.google.de/groups?selm=411B6473.E32A1721%40web.de
Disclaimer: I am not a lawyer, the below reflects my opinion, etc.
First, I'd like to point out a flaw in your argument.
"The GPL in essence states that a licensee is not authorized to copy or distribute code unless the licensee does certain things."
The GPL states *no such thing*. Copyright law states that. Copyright law removes your right to copy or distribute something without the express permission of the copyright holder. The GPL simply gives you extra rights that you otherwise would not have. It gives you limited rights to modify and distribute the software. These are rights that copyright law took away, and that the GPL gives back. This is an important distinction.
The example you gave does not seem particularly relevant to the GPL. Here are some reasons why I think so:
1) The right excluded by the license in your example is the right to "develop a competitive product." This right is not directly related to the copyright. It is a separate right that the company previously had, and that the copyright license seeks to remove.
This would be equivalent to saying "You can buy my cookbook, but only on the condition that you never write a cookbook yourself." Certainly the publisher can protect themselves from plagiarism, but that's already handled by copyright law. If someone bought the book and later decided to write their own cook book, using no information gained from the purchased book, they should be allowed to do so. Denying them this right would be copyright misuse. This is essentially what the license in the example you gave is trying to do.
By contrast, the only restrictions in the GPL are on rights that the GPL explicitly grants, and which you would not otherwise have.
In the cookbook analogy, this would be equivalent to stating (under the copyright notice) "You have the right to copy and distribute limited portions of this book, provided no distribution contains more than 5 pages or is given to more than 10 people." This is granting the purchaser an extra right that they did not otherwise have, and placing restrictions on that right. This is not copyright misuse.
2) The license (I presume, I haven't read the case) applies to *users* of the software, not distributors.
My understanding of copyright law is that it covers *copy rights*. It does not cover anything else. Someone who has a copy of your copyrighted work can do anything with it, so long as they are not copying it (or doing anything remotely similar to copying it).
In the example you gave, the license would limit what people who use (but never copy or distribute) the software could do.
This would be equivalent to the cookbook publisher stating "You may not tear this book up into pieces and make a papier-mache cow out of it." The publisher simply does not have and cannot assert the right to prevent a purchaser of the book from doing this.
By contrast, the GPL places *no* restrictions on users of the software (if I'm wrong here, please point out where). The GPL only places limitations on people who would distribute the software, and only places limitations on how the software is distributed.
3) The time limit.
In the example you gave, the restriction was for 99 years, even though the copyright might expire before that. The court considered that inappropriate.
By contrast, the GPL only gives you rights that copyright law originally took away. Once the copyright expires, the work passes into the public domain, and the GPL becomes irrelevant.
Here's why: the GPL gives you certain rights to distribute the software. If you do not abide by the GPL, then the GPL does not give you the right to distribute the software. But, if the work has passed into the public, then you already have the right to distribute it, so you do not need the rights that the GPL grants. Thus, the GPL is irrelevant to works that are in the public domain.
Thus, the GPL cannot place restrictions that extend past the lifetime of the copyright.
These are three reasons I feel that the license in the example you gave could (should) be considered copyright misuse, and none of them apply to the GPL.
Do you have any other reasons why the GPL could be considered copyright misuse? Or a more appropriate analogous case?
-- Ken
Repeat disclaimer: I am not a lawyer. I was not involved in writing the GPL. Everything expressed here is my opinion, and is based on publicly available information. Opinons expressed here do not necessarily reflect the opinions of any other person or entity.
> reasons why
Try
http://www.oslawblog.com/2004/11/gpl-and-compilations.html#c110563622217146108
regards,
alexander.
>> reasons why
> Try
> http://www.oslawblog.com/2004/11/gpl-and-compilations.html#c110563622217146108
> regards,
> alexander.
Interesting. I'll reply on that thread.
-- Ken
Charlie says
"Doing so and being found out would be disasterous for any company because their software would then effectively have to become Free under the terms of the GPL."
I don't think that is necessarily so.
They could stop distributing their software while they rip out the GPL software that should not be there. They can then re-write the missing code and release their software again.
I seem to temember reading of instances where this option was either offered or taken. I am not sure now.
A Nony Mouse
Post a Comment
<< Home