Re: More FSF hypocrisy

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> Alexander Terekhov wrote:
> > <quote source="Open Source Licensing: Virus or Virtue?">
> >
> > Even if the open source license [GPL] is binding, the copyleft
> > provision may still not be enforceable as to independent
> > proprietary code, in light of the intellectual property misuse
> > doctrine.
> 
> This may in fact be true (for a change!) but until a court rules
> that way, the assumption must be that the GPL provisions are valid.
> 
> Also, from "IP and antirust" by Hovenkamp, Janis, and Lemley:
> <http://books.google.com/books?id=ILcfV28n7WgC&pg=PT124&lpg=PT124&dq=patent+grantback+misuse&source=bl&ots=KCrvPfGsu1&sig=CCMAUtr8AnS46n5b6aASlIsUbx4&hl=en&ei=5q7LSdWSKKHNlQeluZHWCQ&sa=X&oi=book_result&resnum=1&ct=result#PPT126,M1>
>      One significant determinant of the competitive effect of
>      a grantback clause is the exclusivity of the grant of rights
>      required.
>      ....
>      Nonexclusive licenses should almost never cause competitive
>      concern.
> 
> And from the DOJ and FTC "Antitrust Guidelines for the Licensing
> of Intellectual Property":
> <http://www.usdoj.gov/atr/public/guidelines/0558.pdf>
>      In the vast majority of cases, restraints in intellectual
>      property licensing arrangements are evaluated under the rule
>      of reason. The Agencies' general approach in analyzing a
>      licensing restraint under the rule of reason is to inquire
>      whether the restraint is likely to have anticompetitive effects
>      and, if so, whether the restraint is reasonably necessary to
>      achieve procompetitive benefits that outweigh those
>      anticompetitive effects.
> 
> I am reading these excerpts as indicating that a copyright misuse
> claim will fail against the GPL. 

What part in 

"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 provision.[79]

[...]

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."

don't you understand, stupid Hyman?

Here's more:

http://digital-law-online.info/lpdi1.0/treatise15.html

"The copyright misuse defense is similar to an antitrust claim, where a
copyright owner has misused the limited monopoly granted by the
copyright. However, the Lasercomb decision made it clear that the
copyright misuse defense is available even when the misuse does not
reach the level of an antitrust violation."

To repeat:

<quote source="Open Source Licensing: Virus or Virtue?">

Even if the open source license [GPL] is binding, the copyleft 
provision may still not be enforceable as to independent 
proprietary code, in light of the intellectual property misuse 
doctrine. The doctrine is asserted as an affirmative defense to 
an intellectual property infringement claim. Much like an unclean 
hands defense, the misuse doctrine precludes enforcement of 
intellectual property rights that have been extended beyond the 
scope of those rights. 

[...]

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 misuse.[76]

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 provision.[79]

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, though. 

[...]

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] Thus, licensors 
using copyleft licenses need to realize that they may be unable to 
enforce the copyleft provision against separate works of the 
licensee, and that any such attempt may at least temporarily 
invalidate all their copyrights in the entire open source program. 
Copyleft licenses are still valuable, however, where they do not 
try to infect independent code. They should safely cover any 
dependent derivative works based on the original GPL code. 
Licensors simply need to understand the potential limitations and 
risks of copyleft to employ it effectively.

</quote>

regards,
alexander.

-- 
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)