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Re: Using GPL software

From: Alexander Terekhov
Subject: Re: Using GPL software
Date: Mon, 02 Oct 2006 13:44:21 +0200

"Alfred M. Szmidt" wrote:
>    so that is why we have an LGPL license that enables linking of programs
>    to the libraries without forcing the programs to be GPL-ed?
> Exactly!

That's copyright misuse, dear.
(II.K. Misuse Of Copyright)

Quoting from


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 

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 

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, 


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’ and inventions 
required to be assigned to [the patent licensor] extended 
far beyond the scope of [the] basic patent [licensed by 
licensor] the effect was to extend unlawfully its monopoly 
and thus result in patent misuse.”[80] Plainly, the Patent 
Act does not give the patent owner rights to other unrelated 
patents, and using a patent to obtain such rights exceeds 
the scope of the patent.

Similarly, the Copyright Act’s grant of rights does not 
extend to unrelated works or preexisting (and therefore 
necessarily nonderivative) works, and using the copyright 
license to extract such rights exceeds the scope of the 
copyright grant. This may constitute copyright misuse. A 
license to a copyrighted work on condition that any work 
with which it is combined or shares data must be licensed 
back to the licensor—and the entire world—on the specific 
terms the licensor mandates, is beyond the scope of the 
copyright in the originally licensed work. Yet this is 
what the GPL apparently requires. The copyleft provision 
purports to infect independent, separate works that are 
not derivative of the open source code, and requires 
that such independent works be licensed back to the 
licensor and the entire world under the GPL. The Copyright 
Act does not give the copyright owner rights to such 
independent nonderivative works. Attempting to extract 
such rights exceeds the scope of the copyright. The fact 
that the GPL mandates that the license be free and open is 
irrelevant; as explained above, misuse doctrine does not 
require an analysis of market share, or a weighing of the 
competitive and anticompetitive effects of the provision.

If the copyleft provision constitutes misuse, then the 
plaintiff’s copyrights in the open source program are 
unenforceable until the misuse is purged.[81] As a result, 
at least with respect to the code contributed by any 
plaintiff, the defendant (and anyone else) could infringe 
the copyright with impunity, including taking the code 
private for his own commercial ends.[82] 



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