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Re: SCO laying an ambush for the GPL?

From: Stefaan A Eeckels
Subject: Re: SCO laying an ambush for the GPL?
Date: Tue, 20 Jul 2004 10:19:25 +0200

On 19 Jul 2004 20:02:26 GMT
John Phillips <> wrote:

> 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).

Obviously not. The fact that someone tries to claim more
rights than granted by the copyright statutes does not 
imply that they lose their copyright, but quite simply that
the courts will not follow their interpretation.

> - 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).

Unless the "expansive claims" are part of the license, courts
will disregard such material unless it is the foundation of
the case, or presented by the plaintiff as an element of the case.
Otherwise, it is irrelevant. 
Hence, even if the copyright is owned by the FSF, they can make
whatever claims they want, as long as they don't sue based on
one of the more expansive claims. In a world were everyone is
trying to get maximum protection out of a law that uses terms
ill-adapted to the technical aspects of computer software, it's
the way to go, unfortunately.

> 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.

It's a clever (ab)use of the fact that GPLed software is usually
freely downloadable. If one downloads a copy of a GPLed work,
first sale ought to apply to that copy. Thus, if one downloads
it a million times, one has a million first sale copies one can
use in the same sense as a book, for example making a million 
collages with pages ripped from each copy. Or, in programming
terms, use files or functions from the GPLed work in one's own
programs without honouring the license. This also requires that
combining source files into a working program is interpreted as
"making a compilation" instead of "preparing a derivative work
of the various source files", and that an executable is equally
considered to be a compilation or aggregation instead of a either
a derivative work or plain (mechanically transformed) copy of 
the source code. 

IMHO, it badly reeks of legal chicanery. I do understand that
the OP has problems with some of the FSF's more outlandish claims
WRT derivative works, but I sure have major problems with his
idea that making source code freely available essentially means
losing any form of copyright protection. 

Take care,

"What is stated clearly conceives easily."  -- Inspired sales droid

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