encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Alexander Terekhov alexander.terekhov at gmail.com
Mon Feb 11 20:01:05 UTC 2008

On Feb 11, 2008 6:53 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting David A. Temeles, Jr. (dtemeles at nvalaw.com):
> > License-discuss may not be the appropriate forum for the discussion
> > Alexander is raising, but this topic is of significant interest and import
> > to the open source community and should be discussed vigorously by the
> > members of the open source community.  I would think that the members of
> > this list would have more intellectual curiosity in the enforceability of
> > open source licenses than demonstrated over the past few days in the
> > responses to Alexander's posts.
> The standard rejoinder is that, if a licence were, in some
> Terenkov/Wallace fever-dream scenario, ruled to have no force,
> recipients would end up with only the rights statutorily granted to a
> lawful recipient of any copyright-encumbered work, which is dramatically
> _fewer_ than any open-source licence conveys, and omits the rights of
> redistribution, creation of derivative works, etc.  (Plaintiff would
> thus have succeeded primarily in shooting himself/herself and other
> recipients in the foot.)  Recipients would then need to seek from the
> copyright owners some revised licence attached to a reissue of the work.
> In short, the standard rejoinder is "If so, so what?"  (Sort of the
> rhetorical equivalent of filing a demurrer in court.  ;->  )

Quoting Dan Wallace:

The GPL is an egregious and pernicious misuse of copyright that rises to
the level of an antitrust violation. The GPL requires control of all
licensees' software patent rights as well as source code copyrights:

"Finally, any free program is threatened constantly by software patents.
We wish to avoid the danger that redistributors of a free program will
individually obtain patent licenses, in effect making the program
proprietary. To prevent this, we have made it clear that any patent must
be licensed for everyone's free use or not licensed at all."; GPL
Preamble; [emphasis added ] (see also the GPL sec. 7 ).

The preceding quotation clearly expresses the anti-competitive nature of
the GPL contract. Judge Richard Posner of the Seventh Circuit has
recognized the potential for copyright misuse to rise to the level of an
antitrust violation:

"The doctrine of misuse "prevents copyright holders from leveraging
their limited monopoly to allow them control of areas outside the
monopoly." A&M Records, Inc. v.Napster, Inc., 239 F.3d 1004, 1026-27
(9th Cir. 2001); see Alcatel USA, Inc. v. DGI Technologies, Inc., 166
F.3d 772, 792-95 (5th Cir. 1999); Practice Management Information Corp.
v. American Medical Ass'n, 121 F.3d 516, 520-21 (1997), amended, 133
F.3d 1140 (9th Cir. 1998); DSC Communications Corp. v. DGI Technologies,
Inc., 81 F.3d 597, 601-02 (5th Cir.1996); Lasercomb America, Inc. v.
Reynolds, 911 F.2d 970, 976-79 (4th Cir. 1990)."; ASSESSMENT
TECHNOLOGIES OF WI, LLC v. WIREDATA, INC., 350 F.3d 640 (7th. Cir.
2003). "

If copyleft constitutes copyright misuse (note that it doesn't even
have to raise to the level of an antitrust violation), then abuser's
copyrights in the copylefted works are unenforceable until the misuse
is purged (i.e. pretty much forever in the case of the copylefted
works which are flying all over the net -- it is pretty hard to
withdraw and purge publicly available copylefted stuff). As a result,
anyone could infringe the copyrights in the copylefted works with
impunity. Vivat Freedom.

"While the exact dimensions of the copyright misuse defense will be
known only after considerably more cases are decided, its consequences
should be considered by anyone who is trying to use his or her
copyright to go beyond the protection of the copyright laws. The
penalty for copyright misuse – unenforceability of the copyright in
court until the misuse has been purged and its effects no longer exist
– is tantamount to losing the copyright."



"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

 -- Brief of Appellees (CAFC 2008-1001).

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