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Re: LGPL module linked with a GPL lib

On 7/29/05, Ken Arromdee <arromdee@rahul.net> wrote:
> While that's true, the right of users to link the software in private isn't
> a personal-use safe harbor--it's explicitly allowed by the GPL.
> If the GPL lets the user do it, it isn't infringement at all.  You can't
> have contributory infringement if there's no infringement.

The GPL is not a new copyright statute with the power to override the
meaning of infringement, nor do its drafting oddities render it null. 
It does indeed declare (in v2) that "activities other than copying,
distribution and modification are not covered by this License"; and,
taking that statement together with the extent of modification and
copying permitted by 17 USC 117 (and its parallels elsewhere), you may
perhaps say that the GPL "explicitly allows" the end user to "link the
software in private".  But that is merely a basis for arguing that the
copyright holder is estopped from suing end users who are simply using
what they have received in good faith.

That does not mean that a distributor could not be successfully sued
for copyright infringement _if_ it were correct that the act of
linking breached rights reserved to the copyright holder.  It makes
little difference whether you call this "direct" or "contributory"
infringement; there is no reason to think that the legal system in any
Berne Convention country would find it difficult to bring the
consequences home to the party that profits (or would be profiting if
it were charging for distribution).  Where there is a valid theory
under which the copyright holder is suffering a loss not of her own
making, any legal system that recognizes "tort" or a similar concept
may be expected to provide a forum for her to demonstrate who is
responsible for wronging her.

Compare, for instance, Micro Star v. FormGen.  You could argue that
the "unauthorized sequel" didn't really exist until an end user loaded
the MAP file into Duke Nukem, and Micro Star neither authored the MAP
files nor distributed them together with Duke Nukem.  FormGen had
effectively estopped itself, in its license, from suing either the MAP
file authors (who were giving away their work in compliance with the
terms of the license) or the end users.  Yet FormGen successfully sued
Micro Star for copyright infringement, essentially because 1) they
were distributing files which amounted to infringing works of fiction
and had no substantial non-infringing uses, and 2) they could not
claim the non-commercial exemption offered in the license to the MAP
file authors themselves.

Where the GPL situation differs, of course, is that linking one
library to another does not create an "unauthorized sequel" of either;
nor does any other way of using one program's functionality from
another without a deliberate intermingling of their creative
expression by a human agency.  There may well be ways of writing an
offer of contract such that the licensee gives up rights with respect
to a published work that he would otherwise have under copyright law,
in exchange for other rights that are within the copyright holder's
power to grant or reserve.  But the GPL drafters are in a very poor
position to make such an argument.

The GPL does not succeed in blocking the creation, distribution, and
use of interoperating programs under other licenses.  Not, perhaps,
because the drafters didn't intend to do so, and certainly not because
the GPL is some sort of magical creature of copyright law (it's not). 
Instead, its interpretation is constrained by its drafters' insistence
on claiming that it is designed to give freedoms and take none away,
and by their dogged determination to use copyright-law language
(however inapposite) to persuade the naive reader that it is free of
the contract law's jurisdictional variations and rules of

Given the GPL's preamble and its drafters' conduct, I think you would
have to go pretty far afield to find a legal system in which a GPL
licensor would be permitted to deny a licensee liberties that would be
permitted to another with no contractual relationship to the author. 
And in US law as I understand it, those liberties include the
creation, distribution, and use of software that interoperates via
published external interfaces, whether or not it is in the economic
(or ideological) interests of the original author to permit this.  The
only exceptions of which I am aware involve quite different causes of

  - misappropriation of characters and mise en scene (Micro Star v. FormGen)
  - fraud on the copyright office and literal infringement in excess
of strict interoperability requirements (Atari v. Nintendo)
  - misappropriation of trade secrets by former employees (Cadence v. Avant!)
  - breach of a duly executed contract, and failure of the 17 USC 117
exemption because the licensee did not qualify as the "owner of a
copy" (DSC v. Pulse)
  - breach of conditions of license in a negotiated contract, and
thereafter trademark dilution (Sun v. Microsoft)
  - trademark dilution following the expiration of a separate
trademark license agreement (Progress Software v. MySQL)
  - etc., etc.; counterexamples welcome if you can find them, of course.

- Michael

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