How To Break The GPL

Rod Dixon, J.D., LL.M. rod at
Fri Mar 3 19:30:56 UTC 2000

This is an interesting debate. Important copyright issues are implicated. I
think there are important distinctions between the HTML example and the
Windows OS. I think it is interesting how people quickly use MSFT in these
bad-boy hypotheticals, but rarely point how Sun Microsystems is actually
using their licenses for Java in the same manner. At any rate, I know of no
legal precedent that would support Microsoft (or any other OS developer)
"right" to "ban" use of the OS by third-party software developers. The only
cases where similar attempts have been made are in the area of game consoles
(e.g., Sega, Sony etc.) and courts have consistently refused to prohibit
third-party developers from free-riding. Fiar use is useually the defense
and such would apply to MSFT as well.

Rod Dixon, J.D., LL.M.
rod at

> -----Original Message-----
> From: Justin Wells [mailto:jread at]
> Sent: Friday, March 03, 2000 2:01 PM
> To: Ken Arromdee
> Cc: license-discuss at
> Subject: Re: How To Break The GPL
> RMS may be correct in this case. I am not a lawyer. The counter-argument
> that MSFT could ban people from making Windows software doesn't fly.
> They CAN ban you from creating derivitive works based on their copyrighted
> material, they have every right to do that. By encouraging people to
> create these derivatives they have effectively granted permission to
> do so (implicitly, even if their license doesn't make it explicit).
> It's similar to the implicity right you have to make copies of an HTML
> file in the course of loading it into your browser, saving it on disk,
> and other ordinary things that would happen when you typed in the URL
> of some copyrighted material. By putting it on a website the copyright
> owner is implicitly giving you the right to do that, even if it says
> "All rights reserved" somewhere on the page.
> MSFT would NOT be able to say "everyone but Netscape and Corel" in
> their license, even without anti-trust laws they would get into legal
> hotwater for that one. It's simply anti-competitive, illegal
> discrimination. You can only discriminate on the basis of things
> like "people who paid" or "people who also bought Windows", etc.,
> and any company or person has the right to be one of those people
> if they fit the criteria (by having paid, or bought windows, or
> whatever).
> That's my understanding, but again, I am not a lawyer.
> Justin
> On Fri, Mar 03, 2000 at 09:44:20AM -0800, Ken Arromdee wrote:
> > Of course this position has some other unpleasant consequences too; for
> > instance, a program designed only to run with Microsoft Windows DLLs is
> > a derivative work of Windows, which means that Microsoft can
> deny you the
> > legal right to write Windows programs.  I wrote to RMS asking
> him about just
> > this scenario, and his reply was basically that this is
> correct, but that it
> > is not in the interests of the makers of proprietary operating
> systems to do
> > that.  (I didn't buy that--it wouldn't be in Microsoft's
> interest to ban *all*
> > Windows software, but it would be in their interest to ban,
> say, Word Perfect
> > or Netscape.)
> >

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