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Re: LGPL module linked with a GPL lib

On Fri, 29 Jul 2005, Michael K. Edwards wrote:
> > 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. 
> ...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.

By this reasoning, if linking is normally a breach of rights, I could give you
some BSD licensed software and do exactly the same thing.  I am estopped from
suing you for linking with my BSD software, but I can still prevent other
people from helping you link with it, since the linking is still infringement
despte the license telling you you can do it.

If I give you some software and say that you can link it in private, that's
*permission*.  The GPL doesn't need to override the meaning of "infringement",
because it already has a meaning, and that meaning already says that if you
have permission to do it, it isn't infringement.  If it isn't infringement,
helping you do it can't be contributory infingement.

>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.

Oh, come on.  FormGen claimed that the MAP files themselves were infringements,
because they used the game setting.  It didn't matter that the user linked
them, because they were unauthorized sequels all by themselves.  This was one
of the distinctions the court made between it and the Game Genie case, because
in their view the Game Genie only lets consumers create derivatives, but the
MAP files are derivatives.

# More significantly, Nintendo alleged only contributory infringement--
# that Galoob was helping consumers create derivative works; FormGen here
# alleges direct infringement by Micro Star, because the MAP files encompass
# new Duke stories, which are themselves derivative works.

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