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Re: using GPL api to be used in a properietary software

From: Alexander Terekhov
Subject: Re: using GPL api to be used in a properietary software
Date: Tue, 15 Mar 2005 13:47:03 +0100

< Part II >

Alexander Terekhov wrote:
> As for the US, < Forward Inline >
> -------- Original Message --------
> Newsgroups:,comp.arch
> Subject: Re: Stallman rants about FreeBIOS
> Message-ID: <>
> References: ... <>

[... why the GPL just can't work under copyright law ...]

Just in case you'll come across an idiot proclaiming that the GPL
works as an "agreement" (apart from Germany... where contractual 
limitation of first sale principle is held to be invalid)... well,
research the topic of enforceability of "contracts of adhesion" and 
contracts in general yourself. Here's some hints, so to speak.  

< 2 x Forward Inline >

-------- Original Message --------
Message-ID: <>
Subject: Re: Stallman rants about FreeBIOS
References: ... <>

Bernd Paysan wrote:
> if the terms are accepted. 

The GPL is a bare copyright license, not a contract. It merely 
misstates the law (go read both 17 USC 109 and 17 USC 117 to begin 
with) and just can't legally compel you to relinquish rights that 
you enjoy under copyright law (or any other rights; in contrast 
to other contractual OSS licenses*** written by real IP lawyers, 
not some obsessive and oppressive lunatic with the help of a law 
historian fond of spreading anti-copyright-and-patent anarchistic 

<quote source=>

Adobe characterizes each transaction throughout the entire stream 
of commerce as a license.8 Adobe asserts that its license defines 
the relationship between Adobe and any third-party such that a 
breach of the license constitutes copyright infringement. This 
assertion is not accurate because copyright law in fact provides 
certain rights to owners of a particular copy. This grant of rights 
is independent from any purported grant of rights from Adobe. 



See also
(Specht v. Netscape Communications Corp.)

Furthermore, FSF's expansive claims (just like SCO's -- see Tenth 
IBM's defense) are barred by the doctrine of copyright misuse.

<quote source="Open Source Licensing: Virus or Virtue?">

Even if the open source license [GPL] is binding, the copyleft 
provision may still not be enforceable as to independent 
proprietary code, in light of the intellectual property misuse 
doctrine. The doctrine is asserted as an affirmative defense to 
an intellectual property infringement claim. Much like an unclean 
hands defense, the misuse doctrine precludes enforcement of 
intellectual property rights that have been extended beyond the 
scope of those rights. 


A successful misuse defense bars the misuser from prevailing 
against anyone on an action for infringement of the misused 
intellectual property, even against defendants who have not been 
harmed or affected by the misuse.[76]

The misuse doctrine was judicially created, first in the patent 
context. Only recently has the misuse doctrine been extended to 
copyrights, building on the rich misuse history in the patent 
law.[77] Importantly, most courts have found misuse without 
requiring a finding of antitrust liability.[78] Thus, market 
power is unnecessary, as is any analysis of the competitive and 
anticompetitive impacts of the provision.[79]

The courts have yet to analyze a copyleft provision for misuse, 
but the courts have addressed an analogous provision—the 
grantback. A grantback provision requires that a licensee of 
intellectual property grant back to the licensor a license or 
ownership in creations made by the licensee. The typical 
grantback provision requires that the licensee give the licensor 
a nonexclusive license to any improvements or derivatives that 
the licensee creates based on the original licensed property. The 
idea is that the licensee would not have been able to make the 
improvement or derivative without permission of the licensor or 
at least access to the original; thus, the licensor should not 
be blocked by an improvement or derivative he and his 
intellectual property helped create. Giving the license back 
encourages licensors to license, since it mitigates the risk of 
becoming blocked by derivative intellectual property. Like a 
grantback, copyleft requires the licensee to license back its 
improvements. The copyleft provision is more expansive, though. 


Although grantbacks have not come up in the copyright misuse 
arena, they have in the patent context—and as we have seen, the 
patent misuse cases form the underpinning for the copyright 
misuse doctrine. Courts have found that grantback clauses 
extending to improvements are not misuse, because the licensee 
in some sense developed the improvement with the help of the 
original patent. Where grantback clauses extend to preexisting 
or unrelated patents, however, courts have found patent misuse. 
Where "the scope of [licensee's] 'improvements' and inventions 
required to be assigned to [the patent licensor] extended far 
beyond the scope of [the] basic patent [licensed by licensor] the 
effect was to extend unlawfully its monopoly and thus result in 
patent misuse."[80] Plainly, the Patent Act does not give the 
patent owner rights to other unrelated patents, and using a 
patent to obtain such rights exceeds the scope of the patent.

Similarly, the Copyright Act's grant of rights does not extend 
to unrelated works or preexisting (and therefore necessarily 
nonderivative) works, and using the copyright license to extract 
such rights exceeds the scope of the copyright grant. This may 
constitute copyright misuse. A license to a copyrighted work on 
condition that any work with which it is combined or shares data 
must be licensed back to the licensor—and the entire world—on 
the specific terms the licensor mandates, is beyond the scope of 
the copyright in the originally licensed work. Yet this is what 
the GPL apparently requires. The copyleft provision purports to 
infect independent, separate works that are not derivative of the 
open source code, and requires that such independent works be 
licensed back to the licensor and the entire world under the GPL. 
The Copyright Act does not give the copyright owner rights to 
such independent nonderivative works. Attempting to extract such 
rights exceeds the scope of the copyright. The fact that the GPL 
mandates that the license be free and open is irrelevant; as 
explained above, misuse doctrine does not require an analysis of 
market share, or a weighing of the competitive and anticompetitive 
effects of the provision.

If the copyleft provision constitutes misuse, then the plaintiff's 
copyrights in the open source program are unenforceable until the 
misuse is purged.[81] As a result, at least with respect to the 
code contributed by any plaintiff, the defendant (and anyone else) 
could infringe the copyright with impunity, including taking the 
code private for his own commercial ends.[82] Thus, licensors 
using copyleft licenses need to realize that they may be unable to 
enforce the copyleft provision against separate works of the 
licensee, and that any such attempt may at least temporarily 
invalidate all their copyrights in the entire open source program. 
Copyleft licenses are still valuable, however, where they do not 
try to infect independent code. They should safely cover any 
dependent derivative works based on the original GPL code. 
Licensors simply need to understand the potential limitations and 
risks of copyleft to employ it effectively.



***) e.g the CPL:­nses/cpl.php 


No party to this Agreement will bring a legal action under this 
Agreement more than one year after the cause of action arose. 
Each party waives its rights to a jury trial in any resulting 


-------- Original Message --------
Message-ID: <>
Subject: Re: Stallman rants about FreeBIOS
References: ... <>

Bernd Paysan wrote:
> It's a simple copyright violation if you don't accept the
> GPL, and violate the terms - i.e. it's not a lawful copy.

C'mon, as far as copyright is concerned, copies just can't become 
unlawful just because they change owners under terms (or whatever) 
you don't like. If I want to make a copy or two incorporating 
protected elements from some publicly available GPL'd work(s), I 
certainly have all the rights to copy and all those copies are 

Moglen: "Because the GPL does not require any promises in return 
from licensees, it does not need contract enforcement in order to 
work. A GPL licensor doesn't say in the event of trouble "But, judge, 
the licensee promised me he wouldn't do what he's doing now." The 
licensor plaintiff says 'Judge, the defendant is redistributing my 
copyrighted work without permission.'" 

And the defendant says "17 USC 109, Judge." Judge: Case closed. 

Heck, what is so hard to understand here? 


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