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Re: Recommendation for a CL data structures library
From: |
Alexander Terekhov |
Subject: |
Re: Recommendation for a CL data structures library |
Date: |
Tue, 04 May 2010 16:11:41 -0000 |
Hyman Rosen wrote:
[...]
> Misuse of copyright, when applied at all (its appearance is rare
> as hen's teeth), is found in anti-competitive and anti-trust
http://digital-law-online.info/lpdi1.0/treatise15.html
"The copyright misuse defense is similar to an antitrust claim, where a
copyright owner has misused the limited monopoly granted by the
copyright. However, the Lasercomb decision made it clear that the
copyright misuse defense is available even when the misuse does not
reach the level of an antitrust violation. "
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914535
"Two sets of per se rules may be fashioned by the courts. The first type
identifies misuse violating the antitrust laws while the second type
identifies misuse violating an important public policy behind the
intellectual property grant. We discuss both types of per se rules. If a
challenged action does not fit within either set of per se rules, courts
may engage in a rule of reason analysis. Again, two approaches are
possible. The first approach, which coincides with patent and antitrust
analysis, weighs the anticompetitive and procompetitive effects of the
challenged action. The second approach is broader in scope and balances
policy interests reflected in the intellectual property system. "
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=10+Tex.+Intell.+Prop.+L.J.+349&srctype=smi&srcid=3B15&key=ed9b5ca9c1263ab00ffd595e9d8bf201
"Even if the open source license [GPL] is binding, the copyleft
provision may still not be enforceable as to independent
proprietary code, in light of the intellectual property misuse
doctrine. The doctrine is asserted as an affirmative defense to
an intellectual property infringement claim. Much like an unclean
hands defense, the misuse doctrine precludes enforcement of
intellectual property rights that have been extended beyond the
scope of those rights.
[...]
A successful misuse defense bars the misuser from prevailing
against anyone on an action for infringement of the misused
intellectual property, even against defendants who have not been
harmed or affected by the misuse.[76]
The misuse doctrine was judicially created, first in the patent
context. Only recently has the misuse doctrine been extended to
copyrights, building on the rich misuse history in the patent
law.[77] Importantly, most courts have found misuse without
requiring a finding of antitrust liability.[78] Thus, market
power is unnecessary, as is any analysis of the competitive and
anticompetitive impacts of the provision.[79]
The courts have yet to analyze a copyleft provision for misuse,
but the courts have addressed an analogous provision - the
grantback. A grantback provision requires that a licensee of
intellectual property grant back to the licensor a license or
ownership in creations made by the licensee. The typical
grantback provision requires that the licensee give the licensor
a nonexclusive license to any improvements or derivatives that
the licensee creates based on the original licensed property. The
idea is that the licensee would not have been able to make the
improvement or derivative without permission of the licensor or
at least access to the original; thus, the licensor should not
be blocked by an improvement or derivative he and his
intellectual property helped create. Giving the license back
encourages licensors to license, since it mitigates the risk of
becoming blocked by derivative intellectual property. Like a
grantback, copyleft requires the licensee to license back its
improvements. The copyleft provision is more expansive, though.
[...]
Although grantbacks have not come up in the copyright misuse
arena, they have in the patent context - and as we have seen,
the patent misuse cases form the underpinning for the copyright
misuse doctrine. Courts have found that grantback clauses
extending to improvements are not misuse, because the licensee
in some sense developed the improvement with the help of the
original patent. Where grantback clauses extend to preexisting
or unrelated patents, however, courts have found patent misuse.
Where "the scope of [licensee's] 'improvements' and inventions
required to be assigned to [the patent licensor] extended far
beyond the scope of [the] basic patent [licensed by licensor] the
effect was to extend unlawfully its monopoly and thus result in
patent misuse."[80] Plainly, the Patent Act does not give the
patent owner rights to other unrelated patents, and using a
patent to obtain such rights exceeds the scope of the patent.
Similarly, the Copyright Act's grant of rights does not extend
to unrelated works or preexisting (and therefore necessarily
nonderivative) works, and using the copyright license to extract
such rights exceeds the scope of the copyright grant. This may
constitute copyright misuse. A license to a copyrighted work on
condition that any work with which it is combined or shares data
must be licensed back to the licensor -and the entire world- on
the specific terms the licensor mandates, is beyond the scope of
the copyright in the originally licensed work. Yet this is what
the GPL apparently requires. The copyleft provision purports to
infect independent, separate works that are not derivative of the
open source code, and requires that such independent works be
licensed back to the licensor and the entire world under the GPL.
The Copyright Act does not give the copyright owner rights to
such independent nonderivative works. Attempting to extract such
rights exceeds the scope of the copyright. The fact that the GPL
mandates that the license be free and open is irrelevant; as
explained above, misuse doctrine does not require an analysis of
market share, or a weighing of the competitive and anticompetitive
effects of the provision.
If the copyleft provision constitutes misuse, then the plaintiff's
copyrights in the open source program are unenforceable until the
misuse is purged.[81] As a result, at least with respect to the
code contributed by any plaintiff, the defendant (and anyone else)
could infringe the copyright with impunity, including taking the
code private for his own commercial ends.[82] Thus, licensors
using copyleft licenses need to realize that they may be unable to
enforce the copyleft provision against separate works of the
licensee, and that any such attempt may at least temporarily
invalidate all their copyrights in the entire open source program.
Copyleft licenses are still valuable, however, where they do not
try to infect independent code. They should safely cover any
dependent derivative works based on the original GPL code.
Licensors simply need to understand the potential limitations and
risks of copyleft to employ it effectively. "
regards,
alexander.
P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."
Hyman Rosen <hyrosen@mail.com> The Silliest GPL 'Advocate'
P.P.S. "Of course correlation implies causation! Without this
fundamental principle, no science would ever make any progress."
Hyman Rosen <hyrosen@mail.com> The Silliest GPL 'Advocate'
--
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.)
- Re: Recommendation for a CL data structures library, (continued)
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, RJack, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library,
Alexander Terekhov <=
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, Alexander Terekhov, 2010/05/04
- Re: Recommendation for a CL data structures library, Hyman Rosen, 2010/05/04
- Re: Recommendation for a CL data structures library, RJack, 2010/05/04