Subject: Re: For Approval: GPLv3
From: Ian Lance Taylor <ian@airs.com>
Date: 25 Aug 2007 11:02:27 -0700

"Alexander Terekhov" <alexander.terekhov@gmail.com> writes:

> The current proposed amendments raise clear copyright misuse arguments
> in at least two respects by seeking to overreach and control the
> patent rights of parties not directly subscribing to the GPL. First,
> provisions that prohibit a direct party to the GPL from dealing with a
> third party patent holder except on specific terms self evidently
> involves an attempt to use copyrights to prevent the exercise of
> patent rights that are not within the scope of the copyrights being
> exercised. Second, provisions that purport to cause a third party's
> patent license automatically to expand in scope if they have entered
> into an agreement with a third party that is subject to the GPL, even
> though they do not need a copyright license to enter into such
> agreement, clearly overreaches and seeks to use a non-existent
> copyright nexus to affect patent rights. While such provisions are
> likely to prove unenforceable as a matter of copyright or contract
> law, in the unlikely event that they did, they again involve an
> attempt to use copyrights to prevent the exercise of patent rights
> that are not within the scope of the copyrights being exercised.
> Should either of these arguments against the enforcement of the
> amendments succeed, the legal result would be to render the GPL
> unenforceable as to all licensees until the misuse is purged.

I'm sorry, but this seems like nonsense to me.

Nothing prohibits "a direct party to the GPL from dealing with a third
party patent holder."

Nothing causes "a third party's patent license automatically to expand
in scope."

The GPLv3 only says what happens if you distribute the code.
Copyright law may validly control distribution.  The cases of
copyright misuse that you cite are about attempts to use copyright law
to control use, not to control distribution.  The GPLv3 does not
control use.

Ian