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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: diogratia
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Wed, 11 Feb 2009 22:24:27 -0800 (PST)
User-agent: G2/1.0

On Feb 11, 11:55 am, Rjack <> wrote:
> Alexander Terekhov wrote:
> "The doctrine “forbids the use of the [copyright] to secure an
> exclusive right or limited monopoly not granted by the [Copyright]
> Office and which is contrary to public policy to grant.” Altera
> Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir.
> 2005)(citation omitted)."
> This is the central flaw of the GPL license. It attempts to secure
> the exclusive rights of a modifying author who accepts GPL code by
> attempting to force them to license their modifications "to all
> third parties" under terms of the GPL. A "viral" public copyright
> license is the very definition of copyright misuse.
> Sincerely,
> Rjack :)

No, it reserves the exclusive § 106  rights of the copyright holder -
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work; (3)
to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending; to those willing to abide by the GPL, a license granting the
holder in good standing license to execute those exclusive rights
albeit with conditions that may be onerous.

>From the GPL:

  5. You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission to modify or
distribute the Program or its derivative works.  These actions are
prohibited by law if you do not accept this License.  Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.

The GPL does not enlarge the rights of the copyright holder.  Note
that your typical EULA places additional use restrictions in excess of
those found in Title 17, without granting any exclusive right of the
copyright holder license.  Such a  EULA would not be based on
copyright law.

The issue is whether or not Apple is committing copyright misuse by
attempting to use Title 17 (Copyrights) provisions to prevent uses not
held exclusively by the copyright holder.    You could note that those
exclusive rights are limited by § 117:

(a)  Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make or
authorize the making of another copy or adaptation of that computer
program provided:
(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a
machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.

The definition of adaptation is included in § 101:

A “derivative work” is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
“derivative work”.

(An adaptation is a derivative work)

>From Apple's amended complaint:

We see that they are claiming Psystar violates the DMCA (Page 11,
third claim for relief).

>From the DMCA § 1201 (c) (1):

Nothing in this section shall affect rights, remedies, limitations, or
defenses to copyright infringement, including fair use, under this

We could note that the title for § 117 -  Limitations on exclusive
rights: Computer programs appears to meet the proviso specified
in § 1201 (c) (1).

This certainly appears to hold the possibility that should Psystar not
be found to be violating the exclusive rights of the copyright holder
by operating within limitations from § 117 (as opposed to the EULA),
that Apple is attempting to use Title 17 to enlarge their use rights
by copyright misuse, invoking the DMCA.   You could note that Apple's
amended complaint preceeds Psystar's counter claims of copyright


"A second area where the doctrine of copyright misuse, as described in
Video Pipeline, might be applied, is assertion of the Digital
Millennium Copright [sic] Act (DMCA) to obtain quasi patent rights.
That is, traditionally a copyright owner's main remedy has been for
violation of his exclusive rights of copyright, as provided in 17
U.S.C. § 106 -- that is, an action for infringement."

the specter of DMCA copyright misuse directly but leads (circuitously)
Anti-Circumvention Misuse

Dan L. Burk
University of California, Irvine Law School
July 31, 2002
Minnesota Public Law Research Paper No. 02-10

The paper does mention § 1201 (c) (1) as a limitation on the DMCA
(Page 13), although I can attest that you can find it on your own.

You could also note from the abstract:

" ...  More recently, overreaching in copyright licensing has been
recognized to constitute a form of misuse. Abuse of copyright in the
context of computer software licensing has been the typical setting
for a finding of misuse. Recent cases have held that inclusion of a
ninety-nine year non-competition provision as a term of a software
copyright license, or the tying of unpatented hardware to the license
of copyrighted software, constitute misuse of the copyright."

Then again, I'm not a lawyer, and this isn't legal advice.

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