Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

diogratia wrote:
> On Feb 11, 11:55 am, Rjack <u...@example.net> wrote:
> > Alexander Terekhov wrote:
> >
> > "The doctrine “forbids the use of the [copyright] to secure an
> >  exclusive right or limited monopoly not granted by the 
> > [Copyright] Office and which is contrary to public policy to 
> > grant.” Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 
> > (9th Cir. 2005)(citation omitted)."
> >
> > http://docs.justia.com/cases/federal/district-courts/california/candc...
> >
> >
> >
> > This is the central flaw of the GPL license. It attempts to 
> > secure the exclusive rights of a modifying author who accepts 
> > GPL code by attempting to force them to license their 
> > modifications "to all third parties" under terms of the GPL. A 
> > "viral" public copyright license is the very definition of 
> > copyright misuse.
> >
> > Sincerely, Rjack :)
>
> No, it reserves the exclusive § 106  rights of the copyright 
> holder - (1) to reproduce the copyrighted work in copies or 
> phonorecords; (2) to prepare derivative works based upon the 
> copyrighted work; (3) to distribute copies or phonorecords of the
>  copyrighted work to the public by sale or other transfer of 
> ownership, or by rental, lease, or lending; to those willing to 
> abide by the GPL, a license granting the holder in good standing 
> license to execute those exclusive rights albeit with conditions 
> that may be onerous.
>
> From the GPL:
>
> 5. You are not required to accept this License, since you have 
> not signed it.  However, nothing else grants you permission to 
> modify or distribute the Program or its derivative works.  These 
> actions are prohibited by law if you do not accept this License. 
> Therefore, by modifying or distributing the Program (or any work 
> based on the Program), you indicate your acceptance of this 
> License to do so, and all its terms and conditions for copying, 
> distributing or modifying the Program or works based on it.

Section 5 of the GPL was Eben Moglen's futile attempt to implement
his theory that a "license was not a contract". . . instead as his
theory went, the GPL was a "bare conditional license". His fervent
hope was to escape the GPL being interpreted under the variegated
common law of the fifty different states.

Eben Moglen exhorts a logical fallacy -- claiming that any *use* of
of the copyright permissions in the GPL are a "condition precedent"
to the very same *use* of the copyright permissions in the GPL:

"5. You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission. . ."

How can a "use" precede itself?

I wonder what Eben Moglen was thinking when he claimed the GPL was
not a contract. The very heart of his argument is that the license
is "conditional" and therefore not a contract.

The very term "condition" is defined in the Restatement (Second) of
Contracts:

-------------------------------------------------------------------
CONDITIONS AND SIMILAR EVENTS

ARTICLE 224
Condition Defined:
     A condition is an event, not certain to occur, which must
occur, unless its non-occurrence is excused, before performance
under a contract becomes due.
-------------------------------------------------------------------

Notice the words, "before performance under a contract becomes due"?

Section 5 of the GPL is legal nonsense.


Sincerely,
Rjack :)