Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Thu, 2 Aug 2007 11:48:15 -0700

 Thu, 2 Aug 2007 11:48:15 -0700
Walter van Holst wrote:
> Interesting and possibly flawed analysis, but that is not the point here.
> First of all I have to apologize for construing an apaprant American
> concept under Dutch law without hesitating to think about what you might
> have meant. The doctrine of misuse as you know it is not a doctrine I am
> familiar with under Dutch law or any other continental European law system
> I know of. We do have a generic 'misuse of right' doctrine, the GPL would
> clearly fall outside its scope. You may have or not have a point here
> about misues under American copyright law (I'd be delighted to hear
> Lawrence's opinion on this).

My opinion on this topic isn't worth any more than anyone else's, and
certainly not as much as a judge's opinion. :-)

FWIW, I do agree with the analysis that requiring the disclosure of source
code of independent works that are combined with GPL-licensed software into
collective works would be copyright misuse under US law. It would be fun to
argue it in court, but I haven't seen any case where a GPL copyright owner
has dared to risk such a lawsuit to try to force the disclosure of someone
else's independently-written source code that is NOT a derivative work. 

Frankly, I haven't seen any case where a GPL copyright owner has risked a
lawsuit to force the disclosure of a derivative work either, but that one
I'd be willing to take to court, perhaps even on contingency. Unlike some
out there, I believe the GPL is enforceable (either as a license *or* a
contract!), just not as broadly as FSF/SFLC dreams possible.

/Larry


> -----Original Message-----
> From: Walter van Holst [mailto:w.van.holst@mitopics.nl]
> Sent: Thursday, August 02, 2007 10:33 AM
> To: 'Alexander Terekhov'
> Cc: License Discuss
> Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review
> 
> 
> > -----Oorspronkelijk bericht-----
> > Van: Alexander Terekhov [mailto:alexander.terekhov@gmail.com]
> > Verzonden: donderdag 2 augustus 2007 19:08
> > Aan: Walter van Holst
> > CC: Arnoud Engelfriet; Lawrence Rosen; License Discuss
> > Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
> 
> > > It has been enforced twice now in German courts.
> >
> > Here's a feedback from one German appellate judge regarding the
> > (first) case in Munich:
> >
> > http://www.oii.ox.ac.uk/resources/feedback/OIIFB GPL3 20040903.pdf
> > (The first-ever ruling on the legal validity of the GPL - A
> > Critique of the Case)
> >
> > Pay special attention to g).
> 
> Bear in mind that Hören under g) criticizes the court for judging the
> question of the validity of the GPL irrelevant. It nowhere says in his
> critique that the GPL would be invalid. In his opinion the question of the
> validity of the GPL is not one that is irrelevant a priori. Which is a
> valid point, IMAO. BTW, I find it somewhat misleading that you call Hören
> an appelate judge (which he is), the article clearly states that it is
> written in his role as visiting professor. It is exceedingly bad form for
> judges to criticize other judge's decision, unless asked to do so in a
> higher court.
> 
> > > > 3) Perhaps the "pure" GPL is a misuse of copyright.
> > >
> > > Hardly likely. Abuse of copyright is possible in cases it
> > affects free
> > > speech or
> >
> > Quoting from "Open Source Licensing: Virus or Virtue?"
> > (Abstract is available at
> > http://www.utexas.edu/law/journals/tiplj/volumes/archives/vol1
> > 0/vol10n3/nadana.html)
> 
> - snip -
> 
> Interesting and possibly flawed analysis, but that is not the point here.
> First of all I have to apologize for construing an apaprant American
> concept under Dutch law without hesitating to think about what you might
> have meant. The doctrine of misuse as you know it is not a doctrine I am
> familiar with under Dutch law or any other continental European law system
> I know of. We do have a generic 'misuse of right' doctrine, the GPL would
> clearly fall outside its scope. You may have or not have a point here
> about misues under American copyright law (I'd be delighted to hear
> Lawrence's opinion on this).
> 
> Regards,
> 
>  Walter