Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Hyman Rosen wrote:
> Rjack wrote:
> > Why not stop the rhetorical bullshit about "freedom" and admit
> >  the FSF wants to control how society treats the concept of 
> > intellectual property?
>
> Because the FSF believes that users should have the freedom to 
> run, read, modify, and share software. Copyright law grants the 
> right to control copying and distribution of software to its 
> copyright holders.

How very true Hymen -- exclusive rights for an author's original
works as long as that control is exercised in contractual *privity*
with those who are licensed:

"A copyright is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as they
please, so contracts do not create "exclusive rights.". . . But
whether a particular license is generous or restrictive, a simple
two-party contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be
enforced."; ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996).

The GPL is a contract (a creature of state common law) that requires
that "all third parties" to be licensed under GPL terms:

"2(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."

Take a deep breath Hymen and ask yourself if a contract that
requires all third parties to be licensed under its terms is
a simple two-party contract. (see ProCD above)

The GPL is a contract written "to exercise the right to control the
distribution of derivative or collective works" that involves "all
third parties". As such it involves rights "in rem" that affects all
persons. Congress forbid this kind of copyright control:

"Preemption of State Law. The intention of section 301 is to
preempt and abolish any rights under the common law or statutes of
a State that are equivalent to copyright and that extend to works
coming within the scope of the Federal copyright law. The
declaration of this principle in section 301 is intended to be
stated in the clearest and most unequivocal language possible, so
as to foreclose any conceivable misinterpretation of itsunqualified
intention that Congress shall act preemptively, and to avoid the
development of any vague borderline areas between State
and Federal protection."; HOUSE REPORT NO. 94-1476 (1976).

> The GPL is an instrument of copyright law, and it maintains the 
> author's right of control, granting others permission for copying
>  and distribution under limited conditions.

"Limited" yes -- to contractual privity:

"It goes without saying that a contract cannot bind a nonparty";
EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002).

> Those conditions are meant to insure that any user who obtains 
> software under the GPL has the ability to run, read, modify, and
>  share the software.
>
> While the FSF may have opinions about how an ideal society would 
> deal with trademarks, copyrights, and patents, their actions 
> through the GPL are meant to insure only the freedom of users who
>  obtain GPLed software.
>
> > The GPL is not about freedom -- it's all about control.
>
> Control is granted by copyright law to rights holders. The GPL 
> maintains that control, for the benefit of users, not for the 
> benefit of software developers, and especially not for software 
> developers who seek to deny users the four freedoms.
>
> It is time for you to admit that you resent the tantalizing 
> aspect of free software - that it is tempting but out of reach to
>  developers who do not want to offer their own software on the 
> same terms that they receive the software they want to use.

It is time for you to admit that Congress writes the copyright laws
and not socialist zealots like Richard Stallman.

Sincerely,
Rjack :)