Subject: RE: Compatibility of the AFL with the GPL
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 12 Mar 2003 20:46:17 -0800

OK, guys, play with me one more round.  This time, let's do it in the
form of a law school exam question and let's get the lawyers and IANALs
on this list to chime in:

SCENARIO: Several faculty members at Prestigious University have created
a marvelous new package that takes input from a keyboard and displays it
on a monitor faster than any program ever has before.  They decide to
release it to the public under the name WhizBanger.  The P.U. general
counsel tells them to license it using the AFL.  He registers, on behalf
of the University, the trademark WhizBanger for "computer software that
reads from a keyboard and displays on a monitor."

Linus Torvalds learns about WhizBanger and he and his team decide to
include WhizBanger in their new release of Linux.  As usual, they
release their new Linux, with full source code, under the GPL.  The
Debian project thinks the new release of Linux is wonderful.  They
include the modified Linux in their new distribution, also under the
GPL.

Brian Behlendorf learns about WhizBanger and he convinces the Apache
team to include WhizBanger in their new release of Apache.  As usual,
they release with full source code under the Apache license.

BigCo brings Debian Linux into its research labs.  Its engineers,
thrilled to finally be using free software, incorporate Linux into a
computer product they call WhizBanger Deluxe.  They claim in their
advertisements that this product is so wonderful that Linus Torvalds
uses it and "he recommends it to his friends."  WhizBanger Deluxe is
sold worldwide.  There's an entry-level version that is released under
the GPL, and a full-function version that is released under a
proprietary license.

MediumCo also brings Debian Linux and Apache into the company, using
those programs to do payroll and accounts payable functions.  At a
review meeting with his patent attorney, the CEO of MediumCo discovers
that his company has a U.S. patent for a "computer system that accepts
input from a keyboard and displays it on a screen."  Dreaming of vast
royalties, he tells his attorneys to file a lawsuit against Prestigious
University for patent infringement by WhizBanger software.

Meanwhile, Sally Developer, who respects and admires the Free Software
Foundation and has sworn to uphold the principles espoused by Richard
Stallman, discovers that Linus Torvalds included an AFL-licensed program
in Linux.  She's pissed.  She's so angry she's considering revoking her
license for a printer driver that's been a part of Linux since version
1.

Joe Hacker, a high school student, downloads copies of WhizBanger,
Linux, Apache, and the entry-level version of WhizBanger Deluxe from
download.com.  He's getting very upset about all the licensing
controversy that he's heard on license-discuss and he wants to get back
at the people who are making his use of software so complicated.

QUESTIONS:

   - Which of the parties identified above has a possible cause of
action
     against any other party?  [For the non-lawyers in the house,
consider
     copyright law, patent law, contract law, business torts, and
fraud.]

   - What are the possible defenses that could be asserted to protect
against
     those causes of action?

   - How would you measure damages for those causes of action?

   - Would anything be different if the AFL were more compatible with
the GPL?

In considering your answers, ignore that fact that Richard Stallman and
I have expressed contradictory opinions about the licenses.  Neither RMS
nor I are possible parties to any cause of action involving this
scenario, although we might be called as expert witnesses by one side or
another.  

I'm looking forward to your answers.  :-)

/Larry Rosen

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