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Re: Copyright Misuse Doctrine in Apple v. Psystar


From: Alexander Terekhov
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Thu, 12 Feb 2009 16:57:01 +0100

Alan Mackenzie wrote:
[...]
> The GPL was formulated by experienced lawyers, with good understanding
> of copyright and contract law.  Do bear in mind that the law doesn't
> always mean what it seems to to the legally inexperienced.

http://oreilly.com/openbook/freedom/ch09.html

"Mark Fischer, a Boston attorney specializing in intellectual-property
law, recalls discussing the license with Stallman during this period.
"Richard had very strong views about how it should work," Fischer says,
"He had two principles. The first was to make the software absolutely as
open as possible. The second was to encourage others to adopt the same
licensing practices." 

Encouraging others to adopt the same licensing practices meant closing
off the escape hatch that had allowed privately owned versions of Emacs
to emerge. To close that escape hatch, Stallman and his free software
colleagues came up with a solution: users would be free to modify GNU
Emacs just so long as they published their modifications. In addition,
the resulting "derivative" works would also have carry the same GNU
Emacs License. 

The revolutionary nature of this final condition would take a while to
sink in. At the time, Fischer says, he simply viewed the GNU Emacs
License as a simple contract. It put a price tag on GNU Emacs' use.
Instead of money, Stallman was charging users access to their own later
modifications. That said, Fischer does remember the contract terms as
unique. 

"I think asking other people to accept the price was, if not unique,
highly unusual at that time," he says. "

What say you now, Alan?

Here's more:

-----
The GNU General Public License

By the spring of 1985, Richard Stallman had settled on the GNU Project's
first milestone-a Lisp-based free software version of Emacs. To meet
this goal, however, he faced two challenges. First, he had to rebuild
Emacs in a way that made it platform independent. Second, he had to
rebuild the Emacs Commune in a similar fashion. 

The dispute with UniPress had highlighted a flaw in the Emacs Commune
social contract. Where users relied on Stallman's expert insight, the
Commune's rules held. In areas where Stallman no longer held the
position of alpha hacker-pre-1984 Unix systems, for example-individuals
and companies were free to make their own rules. 

The tension between the freedom to modify and the freedom to exert
authorial privilege had been building before GOSMACS. The Copyright Act
of 1976 had overhauled U.S. copyright law, extending the legal
protection of copyright to software programs. According to Section
102(b) of the Act, individuals and companies now possessed the ability
to copyright the "expression" of a software program but not the "actual
processes or methods embodied in the program."1 Translated, programmers
and companies had the ability to treat software programs like a story or
song. Other programmers could take inspiration from the work, but to
make a direct copy or nonsatirical derivative, they first had to secure
permission from the original creator. Although the new law guaranteed
that even programs without copyright notices carried copyright
protection, programmers quickly asserted their rights, attaching
coypright notices to their software programs. 

At first, Stallman viewed these notices with alarm. Rare was the
software program that didn't borrow source code from past programs, and
yet, with a single stroke of the president's pen, Congress had given
programmers and companies the power to assert individual authorship over
communally built programs. It also injected a dose of formality into
what had otherwise been an informal system. Even if hackers could
demonstrate how a given program's source-code bloodlines stretched back
years, if not decades, the resources and money that went into battling
each copyright notice were beyond most hackers' means. Simply put,
disputes that had once been settled hacker-to-hacker were now settled
lawyer-to-lawyer. In such a system, companies, not hackers, held the
automatic advantage. 

Proponents of software copyright had their counter-arguments: without
copyright, works might otherwise slip into the public domain. Putting a
copyright notice on a work also served as a statement of quality.
Programmers or companies who attached their name to the copyright
attached their reputations as well. Finally, it was a contract, as well
as a statement of ownership. Using copyright as a flexible form of
license, an author could give away certain rights in exchange for
certain forms of behavior on the part of the user. For example, an
author could give away the right to suppress unauthorized copies just so
long as the end user agreed not to create a commercial offshoot. 

It was this last argument that eventually softened Stallman's resistance
to software copyright notices. Looking back on the years leading up to
the GNU Project, Stallman says he began to sense the beneficial nature
of copyright sometime around the release of Emacs 15.0, the last
significant pre-GNU Project upgrade of Emacs. "I had seen email messages
with copyright notices plus simple `verbatim copying permitted'
licenses," Stallman recalls. "Those definitely were [an] inspiration." 

For Emacs 15, Stallman drafted a copyright that gave users the right to
make and distribute copies. It also gave users the right to make
modified versions, but not the right to claim sole ownership of those
modified versions, as in the case of GOSMACS. 

Although helpful in codifying the social contract of the Emacs Commune,
the Emacs 15 license remained too "informal" for the purposes of the GNU
Project, Stallman says. Soon after starting work on a GNU version of
Emacs, Stallman began consulting with the other members of the Free
Software Foundation on how to shore up the license's language. He also
consulted with the attorneys who had helped him set up the Free Software
Foundation. 

Mark Fischer, a Boston attorney specializing in intellectual-property
law, recalls discussing the license with Stallman during this period.
"Richard had very strong views about how it should work," Fischer says,
"He had two principles. The first was to make the software absolutely as
open as possible. The second was to encourage others to adopt the same
licensing practices." 

Encouraging others to adopt the same licensing practices meant closing
off the escape hatch that had allowed privately owned versions of Emacs
to emerge. To close that escape hatch, Stallman and his free software
colleagues came up with a solution: users would be free to modify GNU
Emacs just so long as they published their modifications. In addition,
the resulting "derivative" works would also have carry the same GNU
Emacs License. 

The revolutionary nature of this final condition would take a while to
sink in. At the time, Fischer says, he simply viewed the GNU Emacs
License as a simple contract. It put a price tag on GNU Emacs' use.
Instead of money, Stallman was charging users access to their own later
modifications. That said, Fischer does remember the contract terms as
unique. 

"I think asking other people to accept the price was, if not unique,
highly unusual at that time," he says. 


[...]

It wasn't long, Gilmore says, before other hackers began discussing ways
to "port" the GNU Emacs License over to their own programs. Prompted by
a conversation on Usenet, Gilmore sent an email to Stallman in November,
1986, suggesting modification: 

You should probably remove "EMACS" from the license and replace it with
"SOFTWARE" or something. Soon, we hope, Emacs will not be the biggest
part of the GNU system, and the license applies to all of it.3

Gilmore wasn't the only person suggesting a more general approach. By
the end of 1986, Stallman himself was at work with GNU Project's next
major milestone, a source-code debugger, and was looking for ways to
revamp the Emacs license so that it might apply to both programs.
Stallman's solution: remove all specific references to Emacs and convert
the license into a generic copyright umbrella for GNU Project software.
The GNU General Public License, GPL for short, was born. 

[...]

In fashioning the GPL, Stallman had been forced to make an additional
adjustment to the informal tenets of the old Emacs Commune. Where he had
once demanded that Commune members publish any and all changes, Stallman
now demanded publication only in instances when programmers circulated
their derivative versions in the same public manner as Stallman. In
other words, programmers who simply modified Emacs for private use no
longer needed to send the source-code changes back to Stallman. In what
would become a rare compromise of free software doctrine, Stallman
slashed the price tag for free software. Users could innovate without
Stallman looking over their shoulders just so long as they didn't bar
Stallman and the rest of the hacker community from future exchanges of
the same program. 
Looking back, Stallman says the GPL compromise was fueled by his own
dissatisfaction with the Big Brother aspect of the original Emacs
Commune social contract. As much as he liked peering into other hackers'
systems, the knowledge that some future source-code maintainer might use
that power to ill effect forced him to temper the GPL. 

"It was wrong to require people to publish all changes," says Stallman.
"It was wrong to require them to be sent to one privileged developer.
That kind of centralization and privilege for one was not consistent
with a society in which all had equal rights." 

As hacks go, the GPL stands as one of Stallman's best. It created a
system of communal ownership within the normally proprietary confines of
copyright law. More importantly, it demonstrated the intellectual
similarity between legal code and software code. Implicit within the
GPL's preamble was a profound message: instead of viewing copyright law
with suspicion, hackers should view it as yet another system begging to
be hacked. 

"The GPL developed much like any piece of free software with a large
community discussing its structure, its respect or the opposite in their
observation, needs for tweaking and even to compromise it mildly for
greater acceptance," says Jerry Cohen, another attorney who helped
Stallman with the creation of the license. "The process worked very well
and GPL in its several versions has gone from widespread skeptical and
at times hostile response to widespread acceptance." 

In a 1986 interview with Byte magazine, Stallman summed up the GPL in
colorful terms. In addition to proclaiming hacker values, Stallman said,
readers should also "see it as a form of intellectual jujitsu, using the
legal system that software hoarders have set up against them."5 Years
later, Stallman would describe the GPL's creation in less hostile terms.
"I was thinking about issues that were in a sense ethical and in a sense
political and in a sense legal," he says. "I had to try to do what could
be sustained by the legal system that we're in. In spirit the job was
that of legislating the basis for a new society, but since I wasn't a
government, I couldn't actually change any laws. I had to try to do this
by building on top of the existing legal system, which had not been
designed for anything like this." 

About the time Stallman was pondering the ethical, political, and legal
issues associated with free software, a California hacker named Don
Hopkins mailed him a manual for the 68000 microprocessor. Hopkins, a
Unix hacker and fellow science-fiction buff, had borrowed the manual
from Stallman a while earlier. As a display of gratitude, Hopkins
decorated the return envelope with a number of stickers obtained at a
local science-fiction convention. One sticker in particular caught
Stallman's eye. It read, "Copyleft (L), All Rights Reversed." Following
the release of the first version of GPL, Stallman paid tribute to the
sticker, nicknaming the free software license "Copyleft." Over time, the
nickname and its shorthand symbol, a backwards "C," would become an
official Free Software Foundation synonym for the GPL. 

The German sociologist Max Weber once proposed that all great religions
are built upon the "routinization" or "institutionalization" of
charisma. Every successful religion, Weber argued, converts the charisma
or message of the original religious leader into a social, political,
and ethical apparatus more easily translatable across cultures and time. 

While not religious per se, the GNU GPL certainly qualifies as an
interesting example of this "routinization" process at work in the
modern, decentralized world of software development. Since its
unveiling, programmers and companies who have otherwise expressed little
loyalty or allegiance to Stallman have willingly accepted the GPL
bargain at face value. A few have even accepted the GPL as a preemptive
protective mechanism for their own software programs. Even those who
reject the GPL contract as too compulsory, still credit it as
influential. 
-----

http://oreilly.com/openbook/freedom/ch09.html

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(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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