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Re: Recommendation for a CL data structures library

From: Alexander Terekhov
Subject: Re: Recommendation for a CL data structures library
Date: Tue, 04 May 2010 16:11:35 -0000

Hyman Rosen wrote:
> > and is a misuse of copyright
> Misuse of copyright, when applied at all (its appearance is rare
> as hen's teeth), is found in anti-competitive and anti-trust

Not only.

"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. "

"Two sets of per se rules may be fashioned by the courts. The first type
identifies misuse violating the antitrust laws while the second type
identifies misuse violating an important public policy behind the
intellectual property grant. We discuss both types of per se rules. If a
challenged action does not fit within either set of per se rules, courts
may engage in a rule of reason analysis. Again, two approaches are
possible. The first approach, which coincides with patent and antitrust
analysis, weighs the anticompetitive and procompetitive effects of the
challenged action. The second approach is broader in scope and balances
policy interests reflected in the intellectual property system. "

"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. "


P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(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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