Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review
From: Walter van Holst <w.van.holst@mitopics.nl>
Date: Thu, 2 Aug 2007 19:33:04 +0200

 Thu, 2 Aug 2007 19:33:04 +0200

> -----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