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Re: SCO laying an ambush for the GPL?

From: John Phillips
Subject: Re: SCO laying an ambush for the GPL?
Date: 19 Jul 2004 20:02:26 GMT
User-agent: slrn/ (Linux)

In article <>, Alexander Terekhov wrote:
> IANALB and I also believe in this theory. FSF's expansive claims 
> are barred by the doctrine of copyright misuse and the doctrine 
> of first sale.

AIUI, the application of the doctrine of copyright misuse is rare and
has the effect of preventing the copyright owner from asserting his
rights if he has previously misused them.

- It does not seem to allow anyone else (e.g. SCO) to take away and claim
  a valid copyright, even if the GPL is found to be a misuse.  (The rare
  cases seem to arise from anti-trust / competition law copyright misuse
  which seems not to be the case with GPL as I read it).

- In the case of code whose copyright is not owned by the FSF (the
  Linux kernel for example) the "FSF's expansive claims" are not
  apparently a relevant misuse - even if a misuse at all.  It's all in
  the GPL as written and its use by the copyright owner(s).

As for the doctrine of first sale, AIUI this recognizes the separation of
(i) the ownership of the medium and the rights that grants a purchaser
over the medium; from (ii) the ownership of the copyright in the contents
and the different rights granted to a licensee.  Since the GPL applies
to the "program or other work which contains a notice placed by the
copyright holder saying it may be distributed under the terms of this
General Public License" and not to the medium I am not sure how this is
relevant, even in combination with the doctrine of copyright misuse.

IANAL and if I misunderstand I would appreciate enlightement.

John Phillips

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