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Re: Is the GPL all encompassing?

From: Pete Chown
Subject: Re: Is the GPL all encompassing?
Date: 25 Sep 2008 10:34:31 GMT
User-agent: Pan/0.132 (Waxed in Black)

Hyman Rosen wrote:

> Relatively few companies are interested in becoming martyrs to try to
> destroy the GPL. The JMRI case is about the closest that I can think of
> in that respect.

There is also the case against D-Link in Germany.  D-Link agreed to come 
into compliance with the GPL, but refused to reimburse 
for its expenses.  German law would apparently allow such a claim for 
expenses, assuming that D-Link had really infringed copyright.  The 
courts ruled in favour of, and ordered D-Link to pay 
the expenses.

In order to reach this decision, they had to find the GPL to be valid, 
since otherwise there would be no copyright infringement and so expenses 
couldn't be claimed.  On the other hand, D-Link had already agreed to 
stop distributing the infringing devices, so there was no need to grant 
an injunction (and they didn't).

Although the GPL was a "creative" use of copyright licensing, in the 
sense that nothing quite like it had been attempted before, I don't see 
why there should be questions about its validity.  The law gives people 
freedom to choose their own licence terms (subject to some specific 
restrictions, but none of them seem to apply here).

If I hand you a program with no explicit licence, then you cannot pass 
copies to other people.  If I hand you a program together with the GPL, 
it follows that you can only pass copies to other people because the GPL 
is valid.  If the GPL was invalid, presumably you would have no right to 
distribute copies at all.  There is no point arguing that the GPL is 
invalid because, even if the court accepted your argument, you would 
still not be allowed to distribute your product.

It doesn't really matter whether the GPL is a licence or a unilateral 
contract -- or whether they are actually the same thing.  You are still 
caught: you can't claim the right to distribute copies under the GPL 
without also accepting the obligations.

In America, do you have the account of profits remedy for infringement?  
In Britain, if A infringes B's copyright, B can claim damages for the 
loss caused to him by the infringement.  Alternatively, he can claim the 
profits which A made by his infringement.  It might be hard for an open 
source project to quantify the loss it suffered in monetary terms, but I 
wonder if it would be possible for it to claim the profits.  That could 
be a substantial amount of money for a widely distributed product, and it 
would still be possible to ask for an injunction as well.


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