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Re: Use of GPL'd code with proprietary programs

From: telford
Subject: Re: Use of GPL'd code with proprietary programs
Date: Thu, 15 Jul 2004 06:26:02 -0000

In gnu.misc.discuss Alexander Terekhov <> wrote:

> Martin Dickopp wrote:

> [... "exhibits" ...]

> In my view, The FSF's conduct clearly constitutes misuse of copyright
> (quoting Stacy: "It seems more likely that they knew exactly what they 
> were doing, and that from the outset they were hoping to establish new 
> case law by changing the legal meaning of "derivative work", thereby 
> simultaneously expanding the scope of their rights.").
>                ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

> Their idiotic claims are barred by the doctrine of copyright misuse
> and the doctrine of first sale (if you agree with the Libraries 
> Association view of first sale in the digital age... teleportation***
> aside for a moment). 

I completely agree with you on this, and I believe that many members of
the GNU church congregation also agree with you. You are missing a really
fundamental point in all of this: the FSF didn't start the fight.

Misuse of copyright in order to extend the control of the copyright
holder has become a hobby of publishing conglomerates worldwide and
they ALL claim every single right they can and then some more just to
be sure. Try reading a typical proprietary EULA sometime.

The FSF pushing the definition of "derivative work" to the utmost
limit is really an AMBIT BID but they are only claiming equal treatment
to what other copyright holders are claiming. If this ever does go to
court then the judge would be left with a difficult decision:
a ruling in favour of the FSF would strengthen GPL and become a
confidence boost for the entire "Free Software" community,
on the other hand, a ruling against the GPL would be a precedent for
limiting the definition of derivative work and hence would weaken
a lot of other copyright claims (e.g. Microsoft's MFC libraries
or SCO's "application binary interface" claims or Sony's claim to own
the right to license all Playstation software regardless of authorship).

Since most judges will find in favour of large commercial enterprise
unless there is a public outcry or completely blatent illegal behaviour,
the FSF actually gets more strength for its GPL claims as the corporate
copyright holders push harder. Judges (whether drunk or sober) have a
fine tuned sense of detecting which side their bread is buttered on
and their most fundamental task is to maintain whatever orthodoxy happens
to be dominant at the time (thus ensuring social stability, predictable
business outcomes and so on).

Thus correct gameplay for the FSF is to claim exactly as much as any other
large copyright holder is claiming. Since they are all living in the same
house of glass, no one wants to start a stone throwing competition.

        - Tel

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