From: Raul Miller <moth@debian.org> To: none <chloehoffman@hotmail.com> CC: rms@gnu.org, debian-legal@lists.debian.org Subject: Re: Combining proprietary code and GPL for in-house use Date: Fri, 22 Jun 2001 09:01:25 -0400 On Thu, Jun 21, 2001 at 11:33:31PM -0400, none wrote: > My difficulty with this argument is that an owner of the copy of the > GPL library has a wide right to make a derivative work on the owner's > computer by virtue of the GPL and/or a more limited right in the U.S. > by virtue of section 117 of the U.S. Copyright Act. If the end-user is > licensed how is there infringement, whether direct, contributory or > vicarious? Excuse me? I thought you held the position that writing advertising could potentially violate the old BSD copyright. This advertising is NOT a derivative work of the BSD licensed software.
What I tried to express but perhaps I wasn't clear is that the advertising clause is a condition on the license. No compliance with the condition, no license grant.
As I understand the point you are making now, I simply believe that such a condition would likely not be unenforceable in a U.S. court for violation of the First Amendment of the U.S. Constitution. Many agreements have these types of provisions or variants thereof and I have never heard of any those being unenforceable in a private contract matter litigated in a U.S. court. For example, consider the earlier condition in almost all open source licenses that "force" the user to "speak" the license notice, the disclaimer, etc.; consider clauses that requires the insertion of trademark or patent notices; consider any agreement that requires a publisher to publish a novel; etc. etc. I just don't see how the enforcement in a U.S. court of these private arrangements would be seen "as abridging the freedom of speech". I just think the court would say the private party has abridged their own freedom of speech and didn't have to agree to the provision viz. confidentiality agreements. In any event, as Thomas notes, such a provision certainly may enforceable in other jurisdictions, many of which have no First Amendment protections.
But even if the clause were found unenforceable, a legitimate argument can be raised that the whole permission fails and so the "licensee" has no rights (except those default rules provided by the copyright law and/or based on perhaps other bases e.g. implied license). A court has power to "pencil" out unenforceable provisions but rarely exercises such a power if it would upset the bargain. I think this would upset the bargain proposed by the licensor.
The linking issue is a whole other matter. I am saying there that an end-user has, subject to and in compliance with the GPL license terms, a wide right to modify on the end-user's computer. I am trying to understand the basis for infringement where the user combines GPL code on the end-user's computer with another non-GPL program under broad modification/combination rights provided by the GPL (in the matter under consideration a non-GPL program and GPL library linked thereto).
How can you hold this position and imagine that being a derivative work somehow must be less restrictive? -- Raul
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