(OT) - NOT A Major Blow to Copyleft Theory

Ernest Prabhakar ernest.prabhakar at gmail.com
Fri Jan 25 21:10:53 UTC 2008

Hi Larry,

Thanks for the clarification. Alexander, while I appreciate your  
desire to provide context and counter-examples, I would ask you to use  
more moderate language in the future (and include the pertinent  
background on cited cases, e.g. their current year).

-- Ernie P.
L-D Moderator

On Jan 25, 2008, at 11:32 AM, Lawrence Rosen wrote:

> Alexander,
> There is no need to send these emails directly to me. I'm on license- 
> discuss
> already and I'll get copies of your emails automatically.
> If you were trying to tempt me to respond directly to your emails, I'd
> rather not. Instead, I suggest that you reread the amicus brief  
> filed by
> Creative Commons and many friends. [1] This brief makes excellent  
> arguments
> that deserve to be addressed by the courts. Your citing to 1926  
> precedents,
> while in some sense interesting for those of us lawyers who enjoy  
> reading
> Supreme Court decisions, is not likely to get the participants of this
> discussion list to fully appreciate the issues raised by the  
> Jacobsen case.
> One more thing: The subject of these emails, "Major Blow to Copyleft
> Theory", is itself a gross exaggeration. I hope you won't assume the
> inflammatory subject will sway hearts and minds here. It certainly  
> hasn't
> swayed mine.
> Regards,
> /Larry
> [1] http://jmri.sourceforge.net/k/docket/cafc-pi-1/ccc_brf.pdf
> Lawrence Rosen
> Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
> 3001 King Ranch Road, Ukiah, CA 95482
> 707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
> Skype: LawrenceRosen
> Author of "Open Source Licensing: Software Freedom and
>                Intellectual Property Law" (Prentice Hall 2004)
>> -----Original Message-----
>> From: Alexander Terekhov [mailto:alexander.terekhov at gmail.com]
>> Sent: Friday, January 25, 2008 10:42 AM
>> To: lrosen at rosenlaw.com
>> Cc: license-discuss at opensource.org
>> Subject: Re: (OT) - Major Blow to Copyleft Theory
>> FYI:
>> <quote>
>> 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
>> license.
>> 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.
>> http://supreme.justia.com/us/272/476/case.html
>> "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.
>> 476 (1926).
>> 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
>> secure." (supra).
>> 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.
>> Regards,
>> Rjack :)
>> </quote>
>> Well. We'll see. :-) :-)
>> regards,
>> alexander.
>> --
>> "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
>> infringement."

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