conducting a sane and efficient GPLv3, LGPLv3 Review

Alexander Terekhov alexander.terekhov at
Thu Aug 2 17:08:14 UTC 2007

On 8/2/07, Walter van Holst <w.van.holst at> wrote:
> > 1) Perhaps the "pure" GPL is unenforcable under contract law.
> It has been enforced twice now in German courts.

Here's a feedback from one German appellate judge regarding the
(first) case in Munich:
(The first-ever ruling on the legal validity of the GPL - A Critique
of the Case)

Pay special attention to g).

The judgment in English is here:

> > 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.
> I can't answer that since I hardly know anything about US Law, but I am pretty certain
> others will fill in pretty soon.
> > 3) Perhaps the "pure" GPL is a misuse of copyright.
> Hardly likely. Abuse of copyright is possible in cases it affects free speech or

Quoting from "Open Source Licensing: Virus or Virtue?" (Abstract is available at

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

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

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,


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]

> quells competition.

See also and don't miss
references to 81 EGV and 1 GWB. Then reread and
once again pay special attention to g).


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