On 3/29/2010 12:43 PM, Alexander Terekhov wrote:
"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. "
Well, here is the Lasercomb decision: <http://digital-law-online.info/cases/15PQ2D1846.htm> Lasercomb undoubtedly has the right to protect against copying of the Interact code. Its standard licensing agreement, however, goes much further and essentially attempts to suppress any attempt by the licensee to independently implement the idea which Interact expresses. The agreement forbids the licensee to develop or assist in developing any kind of computer-assisted die-making software. If the licensee is a business, it is to prevent all its directors, officers and employees from assisting in any manner to develop computer-assisted die-making software. Although one or another licensee might succeed in negotiating out the noncompete provisions, this does not negate the fact that Lasercomb is attempting to use its copyright in a manner adverse to the public policy embodied in copyright law, and that it has succeeded in doing so with at least one licensee. ... We think the anticompetitive language in Lasercomb’s licensing agreement is at least as egregious as that which led us to bar the infringement action in Compton, and therefore amounts to misuse of its copyright. Again, the analysis necessary to a finding of misuse is similar to but separate from the analysis necessary to a finding of antitrust violation. The misuse arises from Lasercomb’s attempt to use its copyright in a particular expression, the Interact software, to control competition in an area outside the copyright, i.e., the idea of computer-assisted die manufacture, regardless of whether such conduct amounts to an antitrust violation. As you can see, misuse of copyright occurs just as I said it does, when copyright is used in an attempt to limit competition. But as Daniel Wallace discovered, and as you appear not to know no matter how often you are told, the GPL does not limit competition. Rather, by requiring that source code be free, it enhances competition by making the use of covered works available to anyone who receives them. It is fundamental to the understanding of anti-competitive doctrine that these laws protect the public, not the competitors. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss