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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Thu, 26 Mar 2009 18:51:17 +0100

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > don't you understand, stupid Hyman?
> > "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."
> As always, poor Alexander can't read:

Stop being utter idiot Hyman.

>  From the Lasercomb decision,
>      <

"If, as it appears, the district court analogized from the “rule of
reason” concept of antitrust law, we think its reliance on that
principle was misplaced. Such reliance is, however, understandable. Both
the presentation by appellants and the literature tend to intermingle
antitrust and misuse defenses.17 <15 USPQ2d 1853> E.g.,Holmes,
Intellectual Property, at §4.09. A patent or copyright is often regarded
as a limited monopoly – an exception to the general public policy
against restraints of trade.18 Since antitrust law is the statutory
embodiment of that public policy, there is an understandable association
of antitrust law with the misuse defense. Certainly, an entity which
uses its patent as the means of violating <911 F.2d 978> antitrust law
is subject to a misuse of patent defense. However, Morton Salt held that
it is not necessary to prove an antitrust violation in order to
successfully assert patent misuse:

   It is unnecessary to decide whether respondent has violated the
Clayton Act, for we conclude that in any event the maintenance of the
present suit to restrain petitioner’s manufacture or sale of the alleged
infringing machines is contrary to public policy and that the district
court rightly dismissed the complaint for want of equity.

314 U.S. at 494. See also Hensley Equip. Co. v. Esco Corp., 383 F.2d
252, 261 & n. 19 [152 USPQ 781], amended on reh’g, 386 F.2d 442 [155
USPQ 183](5th Cir. 1967); 8 Walker on Patents, at §28:33.

So while it is true that the attempted use of a copyright to violate
antitrust law probably would give rise to a misuse of copyright defense,
the converse is not necessarily true – a misuse need not be a violation
of antitrust law in order to comprise an equitable defense to an
infringement action. The question is not whether the copyright is being
used in a manner violative of antitrust law (such as whether the
licensing agreement is “reasonable”), but whether the copyright is being
used in a manner violative of the public policy embodied in the grant of
a copyright."

> The courts find copyright misuse when the copyright holders attempt to
> use their rights improperly to restrain competition

Yeah, yeah. Right from the GNU's mouth:

"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area, but
neither will your competitors be able to get an edge over you. You and
they will compete in other areas, while benefiting mutually in this one.
If your business is selling an operating system, you will not like GNU,
but that's tough on you."


(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.)

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