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GPL legal smoke


From: rjack
Subject: GPL legal smoke
Date: Sat, 16 Jun 2007 16:33:28 -0500
User-agent: Thunderbird 2.0.0.4 (Windows/20070604)

One gets the feeling that the GPLv2 as a legal document (Linus believes it is a sound one) is nothing but unenforceable smoke and mirrors:

“The district court correctly outlined the four factors for determining
whether SCC fairly used Lexmark’s Toner Loading Program:
(1) the purpose and character of the use, including whether it is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work. 17 U.S.C. § 107. . .

With respect to the first factor—the purpose of the use—it is true that
a profit-making purpose generally militates against a finding of fair
use. See Campbell, 510 U.S. at 585. But it is not the case that any
profit-making purpose weighs against fair use, as the “crux” of this
factor “is not whether the sole motive of the use is monetary gain.”
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562
(1985). The question is whether “the user stands to profit from
exploitation of the copyrighted material without paying the customary
price.” Id. (emphasis added); see also Kelly v. Arriba Soft Corp., 336
F.3d 811, 818–19 (9th Cir. 2003). . .

With respect to the fourth factor—the effect of the use on the value of
the copyrighted material—the relevant question likewise is whether the
infringement impacted the market for the copyrighted work itself. See
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 450
(1984) (“[A] use that has no demonstrable effect upon the potential
market for, or the value of, the copyrighted work need not be prohibited
in order to protect the author’s incentive to create.”); Lexmark
International, Inc. v. Static Control Components, Inc., 387 F.3d 522
(6th Cir. 2004).

Remember the GPLv2’s sec. 2(b):

b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole *at no charge* to all third
parties under the terms of this License.

After abstraction, filtration and comparison to remove uncopyrightable
code how is the remaining GPL’d Swiss cheese affected by fair use?

“The question is whether “the user stands to profit from exploitation of
the copyrighted material without paying the customary price.” Id.

“[[A] use that has no demonstrable effect upon the potential market for,
or the value of, the copyrighted work need not be prohibited in order to
protect the author’s incentive to create.”)

rjack








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