Re: Q: Combining proprietary code and GPL for in-house use
This is not legal advice. No lawyer-client relationship is hereby
established. etc. etc.
Here are some salient quotes from the 9th Circuit decision in the Napster
case:
Traditionally, "one who, with knowledge of the infringing activity, induces,
causes or materially contributes to the infringing conduct of
another, may be held liable as a `contributory' infringer."
Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443
F.2d 1159, 1162 (2d Cir. 1971); see also Fonovisa, Inc. v.
Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996). Put
differently, liability exists if the defendant engages in "per-
sonal conduct that encourages or assists the infringement."
Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 693, 706
(2d Cir. 1998).
and
Secondary liability for copyright infringement does not exist in the
absence of direct infringement by a third party. Religious Tech. Ctr. v.
Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1371
(N.D. Cal. 1995) ("[T]here can be no contributory infringement by a
defendant without direct infringement by another."). It follows that Nap-
ster does not facilitate infringement of the copyright laws in the absence
of direct infringement by its users.
Henning's point which I believe is a valid one is that an end-user needs to
infringe in order for someone else to be found a contributory infringer. If
the end-users are licensed, there can be no contributory infringement. The
point is then that an end-user should be able to link licensed GPL code to
non-GPLed code on his/her computer by virtue of the terms of the respective
licenses (and hence not infringe the copyright of either code). The posited
example does not involve simultaneous distribution of incompatible GPL and
non-GPLed code combined as a derived work nor does it involve that same kind
of distribution by the end-user. Perhaps a more apposite example would be
someone "inducing" the end-user to combine the incompatible GPL and
non-GPLed code as a derived work and instructing that end-user to
distribute.
----- Original Message -----
From: "Raul Miller" <moth@debian.org>
To: "Henning Makholm" <henning@makholm.net>
Cc: "Edmund GRIMLEY EVANS" <edmundo@rano.org>; <gregor@hoffleit.de>;
<debian-legal@lists.debian.org>
Sent: Wednesday, June 20, 2001 7:06 PM
Subject: Re: Q: Combining proprietary code and GPL for in-house use
> On Thu, Jun 21, 2001 at 12:49:07AM +0200, Henning Makholm wrote:
> > > [1] P has no copyright on it, so it doesn't have a GPL copyright on
it.
> >
> > Of course there is a copyright on P. It belongs to A.
>
> You did not mention that A had granted copyright to anyone else,
> which makes this incompatible with the GPL.
>
> > > Then: P is the source code for a program which includes L. A is
> > > instructing people to download L (if necessary) to compile P.
> >
> > Which is perfectly fine, because all of those people explicitly have
> > the right to download L. There isn't even minor breach of copyright
> > going on in the B does.
>
> Not for the purpose of linking with P, they don't.
>
> > > This is a clear attempt to evade the copyright on L. A went to
> > > considerable effort to design this situation.
> >
> > So? The only act protected by copyright is copying. A is doing none
> > of that.
>
> Go do a web search on "contributory infringement". Read up on it until
> you can define it in your own words, and explain how it applies (or does
> not apply) to: photo-copiers, napster, etc.
>
> If I can ask you a reasonable question about contributory infringement
> and you can give me an answer that shows you know what it means,
> then I'll be willing to talk to you further about this.
>
> Until then, I'm just wasting my time.
>
> Later,
>
> --
> Raul
>
>
> --
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