Picking a license

[Patrick Maupin]

On May 13, 9:53 am, Paul Boddie <p... at boddie.org.uk> wrote:
> On 13 Mai, 01:36, Patrick Maupin <pmau... at gmail.com> wrote:
>
>
>
> > Once the court reaches that conclusion, it would only be a tiny step
> > to find that the FSF's attempt to claim that clisp infringes the
> > readline copyright to be a misuse of that same readline copyright.
> > See, e.g. LaserComb v Reynolds, where the defendant (IMHO) acted much
> > more egregiously than anybody who is delivering free software like
> > clisp is acting, and nevertheless won on that issue.
>
> In that very case you mention, LaserComb did not lose the copyright
> protection on their work, were "free to bring an infringement suit
> once it had cured the misuse" [1], and the clause which led to a
> defence based on "copyright misuse" was one which forbade licensees
> from making competing products.

Yes.  You make 3 points here, which I will address in order

1) They did not lose the copyright protection on their work.

To be clear, what I meant by losing copyright protection is not at all
the same as losing the copyright itself.  The loss of protections
simply means that you can't necessarily prevail in a lawsuit for
infringement against people who infringed while you were misusing the
copyright.  This could be true, even if while the copyright was being
misused, RMS attempted to sue someone else, and even if he had a solid
case.  From Lasercomb:  "However, again analogizing to patent misuse,
the defense of copyright misuse is available even if the defendants
themselves have not been injured by the misuse."  So, during the time
of the misuse, yes, they lost their copyright protections, but the
loss was only temporary and could be cured going forward by not
overreaching in their license agreement.

2) "Were free to bring an infringement suit once they cured the
misuse."

Yes, if you read the actual footnote you are referencing, it cites
United States Gypsum Co. v National Gypsum Co., which was a patent
case.  In that case, there was a price-fixing cartel based on patents,
and the cartel lost its ability to use the patents until they changed
their illegal patent licensing scheme.  Once they changed how they
licensed their patents to the court's satisfaction, they were then
free to go after patent infringers.  BUT, only for infringements that
occurred *after* they cured the infringement.  Curing the infringement
is not a magic wand that allows you a mulligan for your original cause
of action, otherwise the patent/copyright misuse defense would be
meaningless.

3) and the clause which led to a defence based on "copyright misuse"
was one which forbade licensees from making competing products.

Yes, but if you read the reasoning in the decision, almost any attempt
to stretch a copyright (or patent) to cover things it doesn't really
cover could be viewed as a misuse.  So, to the extent that the GPL
claims that the distribution of something that links to readline
violates readline's copyright by being a derivative work, if a court
finds this to be untrue, it could also find that the readline
copyright was being misused, at least until the license were modified
to make it clear that distributing a program that could use readline
(without distributing readline) did not impose any specific licensing
requirements on the readline-using program.

To follow this logic, all you have to do is to read the LaserComb
decision very carefully (it analogizes copyright misuse to patent
misuse), and then read the myriad ways it is possible to misuse
patents.

Regards,
Pat