[License-review] Approval: Server Side Public License, Version 1 (SSPL v1)

[VanL]

On Thu, Oct 18, 2018 at 6:40 PM Kyle Mitchell <kyle at kemitchell.com> wrote:

>
> As for copyright misuse, in the language of Lasercomb, I
> don't believe either my submission or SSPL purports to
> "suppress any attempt by the licensee to independently
> implement the idea which [the software] expresses", or to
> adopt competing implementations by others.


Granting first that we don't *really* know until a court rules, I read
these differently. Specifically, I see a couple key threads in the law
relating to copyright (or patent) misuse:

1) Use of a copyright or patent to exercise exclusive rights beyond the
scope of the government grant. For example, "Misuse of copyright applies
where the copyright owner tries to extend the copyright beyond its intended
reach, thereby
<https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=7d101a92-9b3a-4e8e-9d0b-d39c3da328f8&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3RVJ-5MM0-006F-P0PF-00000-00&pdcomponentid=6414&ecomp=6p9fk&earg=sr11&prid=5234671d-0862-45be-861e-7662403a5e79#>augmenting
the physical scope of copyright protection. It typically arises in
situations where it is alleged that the copyright owner projected his
unique rights in a work onto other, unrelated products or services."
(Religious Tech. Ctr. v. Lerma, 1996 U.S. Dist. LEXIS 15454, 1578-1579).
Or, in the words of *Lasercomb* (quoting Morton Salt): "Morton was thereby
using its patent to restrain competition in the sale of an item which was
not within the scope of the patent's privilege."

In this case, I don't think it is argued (or arguable) that MongoDB would
in this case be trying to exercise control beyond the scope of the
copyrighted work. The question is whether this would implicate the
exclusive rights of the MongoDB licensee (the party running the service).
While it is in the sense of a negative limitation, I think that a copyright
holder has the exclusive right to control the copying/distribution and
overall licensing of the non-derivative-work software. Hence, I think a
court would find misuse.

2) The use of a copyright or patent to restrict competition (even if it
doesn't rise to the level of an antitrust issue). In this case, you are
right that the SSPL doesn't purport to prevent the creation of a similar,
competing database. However, again, the entire purpose of the SSPL is to
prevent competition to MongoDB by copies that would otherwise be lawful,
and allowed by any other open source license. From *Lasercomb:*

"The need of Joy to protect its investment does not outweigh the public's
right under our system to expect competition and the benefits which flow
therefrom, and the total withdrawal of Compton from the mining machine
business . . . everywhere in the world for a period of 20 years
unreasonably lessens the competition which the public has a right to
expect, and constitutes misuse of the patents." Lasercomb Am., Inc. v.
Reynolds, 911 F.2d 970, 979.
<https://advance.lexis.com/api/document/collection/cases/id/3RTS-8SR0-003B-5075-00000-00?page=979&reporter=1102&cite=911%20F.2d%20970&context=1000516>

Replying broadly to your comments about contract law: It may be possible to
accomplish some of these ends via contract law (putting aside the
impracticablility defense), but you give up your big hammers: a)
injunctions (other than specific performance...sometimes) and b) punitive
or statutory damages.

Thanks,
Van
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