Part II
Alexander Terekhov wrote:
[...]
As for the US, Forward Inline
Original Message
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
Message-ID: [EMAIL PROTECTED]
References: ... [EMAIL PROTECTED]
[... why the GPL just can't work under copyright law ...]
Just in case you'll come across an idiot proclaiming that the GPL
works as an agreement (apart from Germany... where contractual
limitation of first sale principle is held to be invalid)... well,
research the topic of enforceability of contracts of adhesion and
contracts in general yourself. Here's some hints, so to speak.
2 x Forward Inline
Original Message
Message-ID: [EMAIL PROTECTED]
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
References: ... [EMAIL PROTECTED]
Bernd Paysan wrote:
[...]
if the terms are accepted.
The GPL is a bare copyright license, not a contract. It merely
misstates the law (go read both 17 USC 109 and 17 USC 117 to begin
with) and just can't legally compel you to relinquish rights that
you enjoy under copyright law (or any other rights; in contrast
to other contractual OSS licenses*** written by real IP lawyers,
not some obsessive and oppressive lunatic with the help of a law
historian fond of spreading anti-copyright-and-patent anarchistic
propaganda).
quote source=http://tinyurl.com/3c2n2
Adobe characterizes each transaction throughout the entire stream
of commerce as a license.8 Adobe asserts that its license defines
the relationship between Adobe and any third-party such that a
breach of the license constitutes copyright infringement. This
assertion is not accurate because copyright law in fact provides
certain rights to owners of a particular copy. This grant of rights
is independent from any purported grant of rights from Adobe.
/quote
s/Abobe/FSF
See also
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
(Specht v. Netscape Communications Corp.)
Furthermore, FSF's expansive claims (just like SCO's -- see Tenth
IBM's defense) are barred by the doctrine of copyright misuse.
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'
