For Approval: GPLv3

[Alexander Terekhov]

On 25 Aug 2007 08:34:51 -0700, Ian Lance Taylor <ian at airs.com> wrote:
> Chris Travers <chris at metatrontech.com> writes:
>
> > As I understand it, if any part of the GPL v3 (particularly the
> > compulsion to relicense) were found to be a misuse of copyright law,
> > it would provide a defense against an attempt to enforce copyrights on
> > the works we create.
>
> How can the GPLv3 possibly cause copyright misuse, considering that

For example:

http://www.actonline.org/documents/ACT-GPLv3-Legal-Risks.pdf

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Copyright Misuse

Copyright misuse has been held to be a defense to copyright
infringement when (1) a copyright holder tries to expand his or her
copyright protection beyond the rights established in the Copyright
Act, (2) when the copyright holder uses its copyright to foster
anti-competitive behavior, or (3) if the copyright is being used in a
manner violative of the policies established in the Copyright Act. See
Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990);
Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191
(3d Cir. 2003). The defense of misuse may be raised by any defendant,
even one not a party to the overreaching contract, and precludes
enforcement of the copyright until such a misuse is cured. See
Practice Mgmt. Info. Corp. v. AMA, 121 F.3d 516 (9th Cir. 1997).

Copyright misuse is derived from reference to the larger body of
caselaw on misuse under patent law. The patent misuse doctrine is
designed to "prevent a patentee from using the patent to obtain [a]
market benefit beyond that which inheres in the statutory patent
right." Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 704 (Fed.
Cir. 1992) The "key inquiry is whether, by imposing conditions that
derive their force from the patent, the patentee has impermissibly
broadened the scope of the patent grant with anticompetitive effect."
C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1372 (Fed. Cir.
1998). As Professor Hovenkamp explains, the patent misuse doctrine is
"based on one particular form of potential harm to competition: the
distortion of a market caused by expansion of a patent right beyond
its legal scope." Hovenkamp, Antitrust and Intellectual Property §
3.2, at 3-8 (Supp. 2005).

The current proposed amendments raise clear copyright misuse arguments
in at least two respects by seeking to overreach and control the
patent rights of parties not directly subscribing to the GPL. First,
provisions that prohibit a direct party to the GPL from dealing with a
third party patent holder except on specific terms self evidently
involves an attempt to use copyrights to prevent the exercise of
patent rights that are not within the scope of the copyrights being
exercised. Second, provisions that purport to cause a third party's
patent license automatically to expand in scope if they have entered
into an agreement with a third party that is subject to the GPL, even
though they do not need a copyright license to enter into such
agreement, clearly overreaches and seeks to use a non-existent
copyright nexus to affect patent rights. While such provisions are
likely to prove unenforceable as a matter of copyright or contract
law, in the unlikely event that they did, they again involve an
attempt to use copyrights to prevent the exercise of patent rights
that are not within the scope of the copyrights being exercised.
Should either of these arguments against the enforcement of the
amendments succeed, the legal result would be to render the GPL
unenforceable as to all licensees until the -------misuse is purged.
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regards,
alexander.