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Re: The worst that can happen to GPLed code

From: Alexander Terekhov
Subject: Re: The worst that can happen to GPLed code
Date: Tue, 15 Jun 2004 00:10:10 +0200

David Kastrup wrote:

[... copyright misuse ...]

<quote source=>

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 


Now, apropos "offend the public policy behind the copyright 

I also like this:


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:

<quote author=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.



[... first sale ...]

> Sure.  To each lawful copy obtained under copyright rules.  You can
> prepare a collective work with GNU software all you want to (copyright
> gives you the right), but you may not redistribute copies of that
> without explicit permission.

That's not the law. Under first sale, I can redistribute copies 
of GPL'ed works as part of my own compilations. The GPL applies
only to the GPL'ed works (and derivative literary works thereof).

<quote source=>

3. Copyright Infringement Conclusion

In short, the transfer of copies of Adobe software making up the 
distribution chain from Adobe to SoftMan are sales of the 
particular copies, but not of Adobe's intellectual rights in the 
computer program itself, which is protected by Adobe's copyright.

SoftMan is an "owner" of the copy and is entitled to the use and 
enjoyment of the software, with the rights that are consistent 
with copyright law. The Court rejects Adobe's argument that the 
EULA gives to purchasers only a license to use the software. The 
Court finds that SoftMan has not assented to the EULA and 
therefore cannot be bound by its terms. Therefore, the Court 
finds that Adobe has not demonstrated a likelihood of success on 
the merits of its copyright infringement claim.


Note that owners of the GPL'ed software lawfully own infinite 
number of copies (pursuant to the GPL itself, which is a bare 
copyright license, not a EULA). That doesn't mean that first 
sale doctrine doesn't apply to each of them (backup copies 
and adaptations aside for a moment).

See also

Expansive FSF's claims are barred by the doctrine of copyright 
misuse and the doctrine of first sale.


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