Re: GNU licenses

[Alexander Terekhov]

mike4ty4@yahoo.com wrote:
[...]
> Am I right? 

Ever heard of Ray Nimmer?

http://www.ipinfoblog.com/archives/Open%20Source%20Legal%20Issues.pdf

LEGAL ISSUES IN OPEN SOURCE AND
FREE SOFTWARE DISTRIBUTION1
RAYMOND T. NIMMER

1 This materials have been adapted from Chapter 11 in Raymond T.
Nimmer, The Law of Computer Technology (1997, 2005 Supp.).

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C. Viral impact: unrestricted vs. copyleft software

The idea of “copyleft” license provisions is a characteristic part of
at least a segment of the free software and open source software (FSOS)
community.89 Indeed, it is common in FSOS to view restrictive copyleft
provisions as the hallmark of truly “free” software, as the community
defines that term. From the perspective of nonbelievers, however,
copyleft is the most controversial feature of free software and open
source software because it affects the user’s rights with respect to
the FSOS software and may impact the user’s control of software written
entirely by it when used in conjunction with the FSOS software.

In a stunning example of double-speak, the Preamble to the GPL
describes the reason for such provisions in the GPL in terms of
protecting the licensee’s rights:

                To protect your rights,
-----

Nimmer continued...

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While proponents refer to such restrictions as creating “free” software,
protecting rights, persons affected or potentially affected by the terms
tend to refer to the risk of “viral” license terms that reach out to
infect their own, separately developed software and of improper market
                                                       ^^^^^^^^^^^^^^^
leverage and misuse of copyright to control the works of other people.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
----- 

He also notes that

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Beyond contract interpretation issues, the viral terms of licenses 
present legal issues about enforceability. One basis for challenge 
lies in the concept of misuse.98 This theory precludes enforcement of 
intellectual property rights that have been misused by the rights 
owner, including at least in some cases by attempting to leverage the 
rights into control of products or work that falls outside the scope 
of the licensor’s property interest. Clearly, the viral terms in an 
FSOS license do this, but whether courts would hold that they are 
justifiable by the nature of the context and the purpose behind the 
license terms remains to be seen.
-----

Interestingly enough, when Wallace pointed out the problem of 
"automatic" aggregation of rights to INDEPENDENT works (works under 
independent copyright) under the GPL (by virtue of viral infection) 
in court of law, the FSF (defense attorneys from a multi million $ 
law firm hired by the FSF) quickly backtracked:

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In fact, the GPL itself rejects any automatic aggregation of software
copyrights under the GPL simply because one program licensed under the
GPL is distributed together with another program that is not licensed
under the GPL: "In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program)
on a volume of a storage or distribution medium does not bring the
other work under the scope of this License." 
------

Substituting the definitions of "Program" and "work based on the 
Program" from Section 0, the quoted passage of the GPL reads as:

"In addition, mere aggregation of another work not a derivative work
under copyright law (of work which contains a notice placed by the 
copyright holder saying it may be distributed under the terms of this 
General Public License) with work which contains a notice placed by 
the copyright holder saying it may be distributed under the terms of 
this General Public License or a derivative work under copyright law 
(of work which contains a notice placed by the copyright holder saying 
it may be distributed under the terms of this General Public License)
on a volume of a storage or distribution medium does not bring the
other work under the scope of this License." 

regards,
alexander.