(OT) - Major Blow to Copyleft Theory

Chris Travers chris.travers at gmail.com
Tue Aug 28 05:42:10 UTC 2007

On 8/27/07, Donovan Hawkins <hawkins at cephira.com> wrote:
> On Tue, 28 Aug 2007, Mahesh T. Pai wrote:
> > BTW, the argument/FUD sought to be spread here works both ways. Just
> > consider this:-
> >
> > A person violating the Microsoft EULA (for any of their OSes, for
> > example) is exposing himself to CRIMINAL cation, because by violating
> > the EULA, his copy of the OS has become unauthorised. Possession
> > and/or use of unauthourised copies of copyrighted work is a crime as
> > per the law of copyrights.

IANAL, but I believe that EULAs only apply after installation of the
software.  It might be possible to, say, reverse engineer the software prior
to installation.  I know that there was a EULA case some time ago which held
that unbundling clauses could not be enforced against someone who unbundled
and distributed the software without installing it because there was no
contract.  (I think Adobe was the plaintiff.)

The thought has crossed my mind that even the big closed source players
> might want to step in and side with us on this one rather than let this
> recent decision stand. How many companies would want their program reverse
> engineered and used in a competitor's product for whatever fee the court
> decides is appropriate? I think they'd prefer an injunction, same as us.

I would suggest that this is a dangerous precident, not because of what it
means for the GPL but what it means for non-reciprocal open source
licenses.  IANAL, but it seems that this is distinct from De Forest because
of the fact that two contracts existed in De Forest:

1)  Contract between De Forest and AT&T which included a license for AT&T to
make products for the government (sublicense of patent use rights is
inherent here).
2)  An agreement during WWI where AT&T agreed not to seek injunctive relief
against US Government in exchange for later monetary damages.

I think that the court in De Forest quite reasonably saw that De Forest's
patent claim was superceded by AT&Ts sublicense and actions in that regard.
In short the obvious answer is "no, everyone has already decided that this
is a contract issue.  We are going to settle it as such."

With the artistic license it is different.  It is a conditional unilateral
license grant with no obligations in return (unlike the GPL which provides
certain redistribution requirements in exchange for the right to reproduce
the software).  I think that we should do what we need to do to help get
this reversed because it will hurt certain licenses pretty hard.

I think that the entire case is that the appropriate remedy is probably
monetary damages *and* an injunction to cease the offending behavior.   I
also think that people who suggest that the appropriate remedy is an order
to release code under the GPL essentially make the case that the GPL is a
bilateral contract.

Best Wishes,
Chris Travers
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