(OT) - Major Blow to Copyleft Theory
alexander.terekhov at gmail.com
Fri Jan 25 18:42:13 UTC 2008
One thing that continues to confuse people including so-called
"free software lawyers" is the difference between a "scope of
use" restriction term and a contract covenant term in a copyright
Historically, the concept of "scope of use" restrictions stems
from a line of patent decisions by the Supreme Court. This is
exemplified in a decision by the Supreme Court in 1926.
"The owner of a patent may assign it to another and convey (1)
the exclusive right to make, use, and vend the invention
throughout the United States; or (2) an undivided part or share
of that exclusive right; or (3) the exclusive right under the
patent within and through a specific part of the United States.
. . . Conveying less than title to the patent or part of it, the
patentee may grant a license to make, use, and vend articles
under the specifications of his patent for any royalty, or upon
any condition the performance of which is reasonably within the
reward which the patentee by the grant of the patent is entitled
to secure."; United States v. General Electric Co., 272 U.S.
The crucial idea is that the restriction must remain within the
scope of the enumerated right: "[Is] reasonably within the reward
which the patentee by the grant of the patent is entitled to
Remember the Jacobsen Artistic License decision?
Judge White correctly ruled that "[t]he condition that the user
insert a prominent notice of attribution does not limit the scope
of the license". Title 17 U.S.C. sec. 106 of the Copyright Act
doesn't speak to an exclusive right of "attribution".
Some common field of use restrictions are:
1) a specified technology field or product field
2) a geographical area
3) a time limitation
4) commercial or non-commercial use
5) limitations on number of units produced or distributed
One of the problems for open source scope-of-use restrictions is
the fact that *every* decision by the Supreme Court concerning
scope-of-use restrictions has been made in the context of
preserving the *value* of the intellectual property in the
*marketplace* -- a very "capitalist" (contrast: "socialist')
motivation. Scope-of-use restrictions meant for egotistical or
ideological purposes are going to be met with (muted)
hostility by federal judges.
Well. We'll see. :-) :-)
"Because of their informal and diffuse nature, open source groups are
vulnerable to theft of their intellectual property. That theft, in the
form of copyright infringement, happened in this case, and Jacobsen
sought a preliminary injunction to enjoin Katzer and KAMIND's
-- BRIEF OF ROBERT G. JACOBSEN, PLAINTIFF-APPELLANT, CAFC 2008-1001
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