* Added Dan changes and improved formatting
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		|  | @ -11,6 +11,7 @@ | |||
| % FILTER_PDF: \input{generate-pdf-file} | ||||
| % FILTER_HTML: \input{generate-html-file} | ||||
| \input{one-inch-margins} | ||||
| \usepackage{enumerate} | ||||
| 
 | ||||
| %\setlength\parskip{0.7em} | ||||
| %\setlength\parindent{0pt} | ||||
|  | @ -598,12 +599,12 @@ creation of this vibrant commercial and non-commercial Free Software | |||
| economy. | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| \chapter{Copying, Modifying and Redistributing} | ||||
| \chapter{Running Software And Verbatim Copying} | ||||
| 
 | ||||
| This chapter begins the deep discussion of the details of the terms of | ||||
| GPL\@.  In this chapter, we consider the core terms: GPL \S\S 0--3.  These | ||||
| are the sections of the GPL that fundamentally define the legal details of | ||||
| how software freedom is respected. | ||||
| GPL\@.  In this chapter, we consider the first two sections: GPL \S\S | ||||
| 0--2.  These are the straightforward sections of the GPL that define the | ||||
| simplest rights that the user receives. | ||||
| 
 | ||||
| \section{GPL \S 0: Freedom to Run} | ||||
| \label{GPLs0} | ||||
|  | @ -712,6 +713,340 @@ provide the warranty protection that the GPL disclaims as an additional | |||
| service for a fee.  (See Section~\ref{Business Models} for more discussion | ||||
| on making a profit from Free Software redistribution.) | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| 
 | ||||
| \chapter{Derivative Works: Statute and Case Law} | ||||
| 
 | ||||
| We digress for this chapter from our discussion of GPL's exact text to | ||||
| consider the matter of derivative works --- a concept that we must | ||||
| understand fully before considering \SS 2--3 of GPL\@.  GPL, and Free | ||||
| Software licensing in general, relies critically on the concept of | ||||
| ``derivative work'' since software that is ``independent,'' (i.e., not | ||||
| ``derivative'') of free software need not abide by the terms of the | ||||
| applicable Free Software license.  As much is required by \S 106 of the | ||||
| Copyright Act, 17 U.S.C. \S 106 (2002), and admitted by Free Software | ||||
| licenses, such as the GPL, which (as we have seen) states in \S 0 that ``a | ||||
| 'work based on the Program' means either the Program or any derivative | ||||
| work under copyright law.'' It is being a derivative work of Free Software | ||||
| that triggers the necessity to comply with the terms of the Free Software | ||||
| license under which the original work is distributed. Therefore, one is | ||||
| left to ask, just what is a ``derivative work?'' The answer to that | ||||
| question differs depending on which court is being asked. | ||||
| 
 | ||||
| The analysis in this chapter sets forth the differing definitions of | ||||
| derivative work by Circuit. The broadest and most established definition | ||||
| of derivative work for software is the abstraction, filtration, and | ||||
| comparison test (``the AFC test'') as created and developed by the Second | ||||
| Circuit. Some Circuits, including the Ninth Circuit and the First Circuit, | ||||
| have either adopted narrower versions of the AFC test or have expressly | ||||
| rejected the AFC test in favor of a narrower standard. Further, several | ||||
| other Circuits have yet to adopt any definition of derivative work for | ||||
| software. | ||||
| 
 | ||||
| As an introductory matter, it is important to note that literal copying of | ||||
| a significant portion of source code is not always sufficient to establish | ||||
| that a second work is a derivative work of an original | ||||
| program. Conversely, a second work can be a derivative work of an original | ||||
| program even though absolutely no copying of the literal source code of | ||||
| the original program has been made. This is the case because copyright | ||||
| protection does not always extend to all portions of a program’s code, | ||||
| while, at the same time, it can extend beyond the literal code of a | ||||
| program to its non-literal aspects, such as its architecture, structure, | ||||
| sequence, organization, operational modules, and computer-user interface. | ||||
| 
 | ||||
| \section{The Copyright Act} | ||||
| 
 | ||||
| The copyright act is of little, if any, help in determining the definition | ||||
| of a derivative work of software. However, the applicable provisions do | ||||
| provide some, albeit quite cursory, guidance. Section 101 of the Copyright | ||||
| Act sets forth the following definitions: | ||||
| 
 | ||||
| A ``computer program'' is a set of statements or instructions to be used | ||||
| directly or indirectly in a computer in order to bring about a certain | ||||
| result. | ||||
| 
 | ||||
| A ``derivative work'' is a work based upon one or more preexisting works, | ||||
| such as a translation, musical arrangement, dramatization, | ||||
| fictionalization, motion picture version, sound recording, art | ||||
| reproduction, abridgment, condensation, or any other form in which a work | ||||
| may be recast, transformed, or adapted. A work consisting of editorial | ||||
| revisions, annotations, elaborations, or other modifications which, as a | ||||
| whole, represent an original work of authorship, is a ``derivative work''. | ||||
| 
 | ||||
| These are the only provisions in the Copyright Act relevant to the | ||||
| determination of what constitutes a derivative work of a computer | ||||
| program. Another provision of the Copyright Act that is also relevant to | ||||
| the definition of derivative work is \S 102(b), which reads as follows: | ||||
| 
 | ||||
| \begin{quotation} | ||||
| In no case does copyright protection for an original work of authorship | ||||
| extend to any idea, procedure, process, system, method of operation, | ||||
| concept, principle, or discovery, regardless of the form in which it is | ||||
| described, explained, illustrated, or embodied in such work. | ||||
| \end{quotation} | ||||
| 
 | ||||
| Therefore, before a court can ask whether one program is a derivative work | ||||
| of another program, it must be careful not to extend copyright protection | ||||
| to any ideas, procedures, processes, systems, methods of operation, | ||||
| concepts, principles, or discoveries contained in the original program. It | ||||
| is the implementation of this requirement to ``strip out'' unprotectable | ||||
| elements that serves as the most frequent issue over which courts | ||||
| disagree. | ||||
| 
 | ||||
| \section{Abstraction, Filtration, Comparison Test} | ||||
| 
 | ||||
| As mentioned above, the AFC test for determining whether a computer | ||||
| program is a derivative work of an earlier program was created by the | ||||
| Second Circuit and has since been adopted in the Fifth, Tenth, and | ||||
| Eleventh Circuits. Computer Associates Intl., Inc. v. Altai, Inc., 982 | ||||
| F.2d 693 (2nd Cir. 1992); Engineering Dynamics, Inc. v. Structural | ||||
| Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Kepner-Tregoe, | ||||
| Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994); Gates | ||||
| Rubber Co. v. Bando Chem. Indust., Ltd., 9 F.3d 823 (10th Cir. 1993); | ||||
| Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); 5 Bateman | ||||
| v. Mnemonics,Inc., 79 F.3d 1532 (11th Cir. 1996); and, Mitek Holdings, | ||||
| Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548 (11th Cir. 1996). | ||||
| 
 | ||||
| Under the AFC test, a court first abstracts from the original program its | ||||
| constituent structural parts. Then, the court filters from those | ||||
| structural parts all unprotectable portions, including incorporated ideas, | ||||
| expression that is necessarily incidental to those ideas, and elements | ||||
| that are taken from the public domain. Finally, the court compares any and | ||||
| all remaining kernels of creative expression to the structure of the | ||||
| second program to determine whether the software programs at issue are | ||||
| substantially similar so as to warrant a finding that one is the | ||||
| derivative work of the other. | ||||
| 
 | ||||
| Often, the courts that apply the AFC test will perform a quick initial | ||||
| comparison between the entirety of the two programs at issue in order to | ||||
| help determine whether one is a derivative work of the other. Such an | ||||
| holistic comparison, although not a substitute for the full application of | ||||
| the AFC test, sometimes reveals a pattern of copying that is not otherwise | ||||
| obvious from the application of the AFC test when, as discussed below, | ||||
| only certain components of the original program are compared to the second | ||||
| program. If such a pattern is revealed by the quick initial comparison, | ||||
| the court is more likely to conclude that the second work is indeed a | ||||
| derivative of the original. | ||||
| 
 | ||||
| \subsection{Abstraction} | ||||
| 
 | ||||
| The first step courts perform under the AFC test is separation of the | ||||
| work’s ideas from its expression. In a process akin to reverse | ||||
| engineering, the courts dissect the original program to isolate each level | ||||
| of abstraction contained within it. Courts have stated that the | ||||
| abstractions step is particularly well suited for computer programs | ||||
| because it breaks down software in a way that mirrors the way it is | ||||
| typically created. However, the Courts have also indicated that this step | ||||
| of the AFC test requires substantial guidance from experts, because it is | ||||
| extremely fact and situation specific. | ||||
| 
 | ||||
| By way of example, one set of abstraction levels is, in descending order | ||||
| of generality, as follows: the main purpose, system architecture, abstract | ||||
| data types, algorithms and data structures, source code, and object | ||||
| code. As this set of abstraction levels shows, during the abstraction step | ||||
| of the AFC test, the literal elements of the computer program, namely the | ||||
| source and object code, are defined as particular levels of | ||||
| abstraction. Further, the source and object code elements of a program are | ||||
| not the only elements capable of forming the basis for a finding that a | ||||
| second work is a derivative of the program. In some cases, in order to | ||||
| avoid a length factual inquiry by the court, the owner of the copyright in | ||||
| the original work will submit its own list of what it believes to be the | ||||
| protected elements of the original program. In those situations, the court | ||||
| will forgo performing its own abstraction, and proceed to second step of | ||||
| the AFC test. | ||||
| 
 | ||||
| \subsection{Filtration} | ||||
| 
 | ||||
| The most difficult and controversial part of the AFC test is the second | ||||
| step, which entails the filtration of protectable expression contained in | ||||
| the original program from any unprotectable elements nestled therein. In | ||||
| determining which elements of a program are unprotectable, courts employ a | ||||
| myriad of rules and procedures to sift from a program all the portions | ||||
| that are not eligible for copyright protection. | ||||
| 
 | ||||
| First, as set forth in \S 102(b) of the Copyright Act, any and all ideas | ||||
| embodied in program are to be denied copyright protection. However, | ||||
| implementing this rule is not as easy as it first appears. The courts | ||||
| readily recognize the intrinsic difficulty in distinguishing between ideas | ||||
| and expression and that, given the varying nature of computer programs, | ||||
| doing so will be done on an ad hoc basis. The first step of the AFC test, | ||||
| the abstraction, exists precisely to assist in this endeavor by helping | ||||
| the court separate out all the individual elements of the program so that | ||||
| they can be independently analyzed for their expressive nature. | ||||
| 
 | ||||
| A second rule applied by the courts in performing the filtration step of | ||||
| the AFC test is the doctrine of merger, which denies copyright protection | ||||
| to expression necessarily incidental to the idea being expressed. The | ||||
| reasoning behind this doctrine is that when there is only one way to | ||||
| express an idea, the idea and the expression merge, meaning that the | ||||
| expression cannot receive copyright protection due to the bar on copyright | ||||
| protection extending to ideas. In applying this doctrine, a court will ask | ||||
| whether the program's use of particular code or structure is necessary for | ||||
| the efficient implementation of a certain function or process. If so, then | ||||
| that particular code or structure is not protected by copyright and, as a | ||||
| result, it is filtered away from the remaining protectable expression. | ||||
| 
 | ||||
| A third rule applied by the courts in performing the filtration step of | ||||
| the AFC test is the doctrine of scenes a faire, which denies copyright | ||||
| protection to elements of a computer program that are dictated by external | ||||
| factors. Such external factors can include: | ||||
| 
 | ||||
| \begin{enumerate} | ||||
|  \renewcommand{\theenumi}{\alph{enumi}} | ||||
|  \renewcommand{\labelenumi}{\textup{(\theenumi)}} | ||||
| 
 | ||||
| \item the mechanical | ||||
| specifications of the computer on which a particular program is intended | ||||
| to operate; | ||||
| 
 | ||||
| \item compatibility requirements of other programs with which a | ||||
| program is designed to operate in conjunction; | ||||
| 
 | ||||
| \item computer manufacturers' | ||||
| design standards; | ||||
| 
 | ||||
| \item demands of the industry being serviced; and | ||||
| 
 | ||||
| widely accepted programming practices within the computer industry. | ||||
| 
 | ||||
| \end{enumerate} | ||||
| 
 | ||||
| Any code or structure of a program that was shaped predominantly in | ||||
| response to these factors is filtered out and not protected by | ||||
| copyright. Lastly, elements of a computer program are also to be filtered | ||||
| out if they were taken from the public domain or fail to have sufficient | ||||
| originality to merit copyright protection. | ||||
| 
 | ||||
| Portions of the source or object code of a computer program are rarely | ||||
| filtered out as unprotectable elements. However, some distinct parts of | ||||
| source and object code have been found unprotectable. For example, | ||||
| constant s, the invariable integers comprising part of formulas used to | ||||
| perform calculations in a program, are unprotectable. Further, although | ||||
| common errors found in two programs can provide strong evidence of | ||||
| copying, they are not afforded any copyright protection over and above the | ||||
| protection given to the expression containing them. | ||||
| 
 | ||||
| \subsection{Comparison} | ||||
| 
 | ||||
| The third and final step of the AFC test entails a comparison of the | ||||
| original program's remaining protectable expression to a second | ||||
| program. The issue will be whether any of the protected expression is | ||||
| copied in the second program and, if so, what relative importance the | ||||
| copied portion has with respect to the original program overall. The | ||||
| ultimate inquiry is whether there is ``substantial'' similarity between | ||||
| the protected elements of the original program and the potentially | ||||
| derivative work. The courts admit that this process is primarily | ||||
| qualitative rather than quantitative and is performed on a case-by-case | ||||
| basis. In essence, the comparison is an ad hoc determination of whether | ||||
| the protectable elements of the original program that are contained in the | ||||
| second work are significant or important parts of the original program. If | ||||
| so, then the second work is a derivative work of the first. If, however, | ||||
| the amount of protectable elements copied in the second work are so small | ||||
| as to be de minimis, then the second work is not a derivative work of the | ||||
| original. | ||||
| 
 | ||||
| \section{Analytic Dissection Test} | ||||
| 
 | ||||
| The Ninth Circuit has adopted the analytic dissection test to determine | ||||
| whether one program is a derivative work of another. Apple Computer, | ||||
| Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994). The analytic | ||||
| dissection test first considers whether there are substantial similarities | ||||
| in both the ideas and expressions of the two works at issue. Once the | ||||
| similar features are identified, analytic dissection is used to determine | ||||
| whether any of those similar features are protected by copyright. This | ||||
| step is the same as the filtration step in the AFC test. After identifying | ||||
| the copyrightable similar features of the works, the court then decides | ||||
| whether those features are entitled to ``broad'' or ``thin'' | ||||
| protection. ``Thin'' protection is given to non-copyrightable facts or | ||||
| ideas that are combined in a way that affords copyright protection only | ||||
| from their alignment and presentation, while ``broad'' protection is given | ||||
| to copyrightable expression itself. Depending on the degree of protection | ||||
| afforded, the court then sets the appropriate standard for a subjective | ||||
| comparison of the works to determine whether, as a whole, they are | ||||
| sufficiently similar to support a finding that one is a derivative work of | ||||
| the other. ``Thin'' protection requires the second work be virtually | ||||
| identical in order to be held a derivative work of an original, while | ||||
| ``broad'' protection requires only a ``substantial similarity.'' | ||||
| 
 | ||||
| \section{No Protection for ``Methods of Operation''} | ||||
| 
 | ||||
| The First Circuit expressly rejected the AFC test and, instead, takes a | ||||
| much narrower view of the meaning of derivative work for software. The | ||||
| First Circuit holds that ``method of operation,'' as used in \S 102(b) of | ||||
| the Copyright Act, refers to the means by which users operate | ||||
| computers. Lotus Development Corp. v. Borland Int’l., Inc., 49 F.3d 807 | ||||
| (1st Cir. 1995). More specifically, the court held that a menu command | ||||
| hierarchy for a computer program was uncopyrightable because it did not | ||||
| merely explain and present the program’s functional capabilities to the | ||||
| user, but also served as a method by which the program was operated and | ||||
| controlled. As a result, under the First Circuit’s test, literal copying | ||||
| of a menu command hierarchy, or any other ``method of operation,'' can not | ||||
| form the basis for a determination that one work is a derivative of | ||||
| another. It is also reasonable to expect that the First Circuit will read | ||||
| the unprotectable elements set forth in \S 102(b) broadly, and, as such, | ||||
| promulgate a definition of derivative work that is much narrower than that | ||||
| which exists under the AFC test. | ||||
| 
 | ||||
| \section{No Test Yet Adopted} | ||||
| 
 | ||||
| Several circuits, including most notably the Fourth and Seventh, have yet | ||||
| to declare their definition of derivative work and whether or not the AFC, | ||||
| Analytic Dissection, or some other test best fits their interpretation of | ||||
| copyright law. Therefore, uncertainty exists with respect to determining | ||||
| the extent to which a software program is a derivative work of another in | ||||
| those circuits. However, one may presume that they would give deference to | ||||
| the AFC test since it is by far the majority rule amongst those circuits | ||||
| that have a standard for defining a software derivative work. | ||||
| 
 | ||||
| \section{Cases Applying Software Derivative Work Analysis} | ||||
| 
 | ||||
| In the preeminent case regarding the definition of a derivative work for | ||||
| software, Computer Associates v. Altai, the plaintiff alleged that the its | ||||
| program, Adapter, which was used to handle the differences in operating | ||||
| system calls and services, was infringed by the defendant's competitive | ||||
| program, Oscar.  About 30 percent of Oscar was literally the same code as | ||||
| that in Adapter.  After the suit began, the defendant rewrote those | ||||
| portions of Oscar that contained Adapter code in order to produce a new | ||||
| version of Oscar that was functionally competitive with Adapter, without | ||||
| have any literal copies of its code.  Feeling slighted still, the | ||||
| plaintiff alleged that even the second version of Oscar, despite having no | ||||
| literally copied code, also infringed its copyrights.  In addressing that | ||||
| question, the Second Circuit promulgated the AFC test. | ||||
| 
 | ||||
| In abstracting the various levels of the program, the court noted a | ||||
| similarity between the two programs' parameter lists and macros.  However, | ||||
| following the filtration step of the AFC test, only a handful of the lists | ||||
| and macros were protectable under copyright law because they were either | ||||
| in the public domain or required by functional demands on the | ||||
| program. With respect to the handful of parameter lists and macros that | ||||
| did qualify for copyright protection, after performing the comparison step | ||||
| of the AFC test, it was reasonable for the district court to conclude that | ||||
| they did not warrant a finding of infringement given their relative minor | ||||
| contribution to the program as a whole.  Likewise, the similarity between | ||||
| the organizational charts of the two programs was not substantial enough | ||||
| to support a finding of infringement because they were too simple and | ||||
| obvious to contain any original expression. | ||||
| 
 | ||||
| Perhaps not surprisingly, there have been few cases involving a highly | ||||
| detailed software derivative work analysis.  Most often, cases involve | ||||
| clearer basis for decision, including frequent bad faith on the part of | ||||
| the defendant or over aggressiveness on the part of the plaintiff. | ||||
| However, no cases involving free software licensing have ever gone to | ||||
| court.  As free software becomes an ever increasingly important part of | ||||
| the economy, it remains to be seen whether or not battle lines will be | ||||
| drawn over whether particular programs infringe the rights of free | ||||
| software developers or whether the entire community, including industry, | ||||
| adopts norms avoiding such risk. | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| 
 | ||||
| \chapter{Modified Source and Binary Distribution} | ||||
| 
 | ||||
| In this chapter, we discuss the two core sections that define the rights | ||||
| and obligations for those who modify, improve, and/or redistribute GPL'd | ||||
| software.  These sections, \SS 2--3, define the central core rights and | ||||
| requirements of GPL\@. | ||||
| 
 | ||||
| \section{GPL \S 2: Share and Share Alike} | ||||
| 
 | ||||
| For many, this is where the ``magic'' happens that defends software | ||||
|  | @ -1073,6 +1408,125 @@ prepared to honor all incoming source code requests.  For this and the | |||
| many other additional necessary complications under \S\S 3(b--c), it is | ||||
| only rarely a better option than complying via \S 3(a). | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| \chapter{The Implied Patent Grant in GPL} | ||||
| 
 | ||||
| We digress again briefly from our section-by-section consideration of GPL | ||||
| to consider the interaction between the terms of GPL and patent law.  The | ||||
| GPL, despite being silent with respect to patents, actually confers on its | ||||
| licensees more rights to a licensor's patents than those licenses that | ||||
| purport to address the issue.  This is the case because patent law, under | ||||
| the doctrine of implied license, gives to each distribute of a patented | ||||
| article a license from the distributor to practice any patent claims owned | ||||
| or held by the distributor that cover the distributed article.  The | ||||
| implied license also extends to any patent claims owned or held by the | ||||
| distributor that cover ``reasonably contemplated uses'' of the patented | ||||
| article.  To quote the Federal Circuit Court of Appeals, the highest court | ||||
| for patent cases other than the Supreme Court: | ||||
| 
 | ||||
| \begin{quotation} | ||||
| Generally, when a seller sells a product without restriction, it in | ||||
| effect promises the purchaser that in exchange for the price paid, it will | ||||
| not interfere with the purchaser's full enjoyment of the product | ||||
| purchased. The buyer has an implied license under any patents of the | ||||
| seller that dominate the product or any uses of the product to which the | ||||
| parties might reasonably contemplate the product will be put. | ||||
| \end{quotation} | ||||
| Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., Inc., 123 F.3d | ||||
| 1445 (Fed. Cir. 1997). | ||||
| 
 | ||||
| Of course, free software is licensed, not sold, and there are indeed | ||||
| restrictions placed on the licensee, but those differences are not likely | ||||
| to prevent the application of the implied license doctrine to free | ||||
| software, because software licensed under the GPL grants the licensee the | ||||
| right to make, use, and sell the software, each of which are exclusive | ||||
| rights of a patent holder.  Therefore, although the GPL does not expressly | ||||
| grant the licensee the right to do those things under any patents the | ||||
| licensor may have that cover the software or its reasonably contemplated | ||||
| uses, by licensing the software under the GPL, the distributor impliedly | ||||
| licenses those patents to the GPL licensee with respect to the GPL | ||||
| licensed software. | ||||
| 
 | ||||
| An interesting issue regarding this implied patent license of GPL'd | ||||
| software is what would be considered ``uses of the [software] to which the | ||||
| parties might reasonably contemplate the product will be put.''  A clever | ||||
| advocate may argue that the implied license granted by GPL is larger in | ||||
| scope than the express license in other free software licenses with | ||||
| express patent grants, in that, the patent license clause of many of those | ||||
| licenses are specifically limited to the patent claims covered by the code | ||||
| as licensed by the patentee. | ||||
| 
 | ||||
| To the contrary, GPL's implied patent license grants the GPL licensee a | ||||
| patent license to do much more than just that because the GPL licensee, | ||||
| under the doctrine of implied patent license, is free to practice any | ||||
| patent claims held by the licensor that cover ``reasonably contemplated | ||||
| uses'' of the GPL'd code, which may very well include creation and | ||||
| distribution of derivative works since the GPL's terms, under which the | ||||
| patented code is distributed, expressly permits such activity. | ||||
| 
 | ||||
| Further supporting this result is the Federal Circuit's pronouncement that | ||||
| the recipient of a patented article has, not only an implied license to | ||||
| make, use, and sell the article, but also an implied patent license to | ||||
| repair the article to enable it to function properly.  Bottom Line Mgmt., | ||||
| Inc. v. Pan Man, Inc., 228 F.3d 1352 (Fed. Cir. 2000).  Additionally, the | ||||
| Federal Circuit extended that rule to include any future recipients of the | ||||
| patented article, not just the direct recipient from the distributor. | ||||
| This theory comports well with the idea of free software, whereby software | ||||
| is distributed amongst many entities within the community for the purpose | ||||
| of constant evolution and improvement.  In this way, the law of implied | ||||
| patent license used by the GPL ensures that the community mutually | ||||
| benefits from the licensing of patents to any single community member. | ||||
| 
 | ||||
| Note that simply because GPL'd software has an implied patent license does | ||||
| not mean that any patents held by a distributor of GPL'd code become | ||||
| worthless.  To the contrary, the patents are still valid and enforceable | ||||
| against either: | ||||
| 
 | ||||
| \begin{enumerate} | ||||
|  \renewcommand{\theenumi}{\alph{enumi}} | ||||
|  \renewcommand{\labelenumi}{\textup{(\theenumi)}} | ||||
| 
 | ||||
| \item any software other than that licensed under the GPL by the patent | ||||
|   holder, and | ||||
| 
 | ||||
| \item any party that does not comply with the GPL | ||||
| with respect to the licensed software. | ||||
| \end{enumerate} | ||||
| 
 | ||||
| \newcommand{\compB}{$\mathcal{B}$} | ||||
| \newcommand{\compA}{$\mathcal{A}$} | ||||
| 
 | ||||
| For example, if Company \compA has a patent on advanced web browsing, but | ||||
| also licenses a web browsing software program under the GPL, then it | ||||
| cannot assert the patent against any party that takes a license to its | ||||
| program under the GPL.  However, if a party uses that program without | ||||
| complying with the GPL, then Company \compA can assert, not just copyright | ||||
| infringement claims against the non-GPL-compliant party, but also | ||||
| infringement of the patent, because the implied patent license only | ||||
| extends to use of the software in accordance with the GPL.  Further, if | ||||
| Company \compB distributes a competitive advanced web browsing program, | ||||
| Company \compA is free to assert its patent against any user or | ||||
| distributor of that product.  It is irrelevant whether Company \compB's | ||||
| program is distributed under the GPL, as Company \compB can not grant | ||||
| implied licenses to Company \compA's patent. | ||||
| 
 | ||||
| This result also reassures companies that they need not fear loosing their | ||||
| proprietary value in patents to competitors through the GPL implied patent | ||||
| license, as only those competitors who adopt and comply with the GPL's | ||||
| terms can benefit from the implied patent license.  To continue the | ||||
| example above, Company \compB does not receive a free ride on Company | ||||
| \compA's patent, as Company \compB has not licensed-in and then | ||||
| redistributed Company A's advanced web browser under the GPL.  If Company | ||||
| \compB does do that, however, Company \compA still has not lost | ||||
| competitive advantage against Company \compB, as Company \compB must then, | ||||
| when it re-distributes Company \compA's program, grant an implied license | ||||
| to any of its patents that cover the program.  Further, if Company \compB | ||||
| relicenses an improved version of Company A's program, it must do so under | ||||
| the GPL, meaning that any patents it holds that cover the improved version | ||||
| are impliedly licensed to any licensee.  As such, the only way Company | ||||
| \compB can benefit from Company \compA's implied patent license, is if it, | ||||
| itself, distributes Company \compA's software program and grants an | ||||
| implied patent license to any of its patents that cover that program. | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| \chapter{Defending Freedom On Many Fronts} | ||||
|  | @ -1284,28 +1738,43 @@ copyright licenses. | |||
| \label{GPLs11} | ||||
| 
 | ||||
| All warranty disclaimer language tends to be shouted in all capital | ||||
| letters.  Apparently, there was once a case where the disclaimer language | ||||
| letters. Apparently, there was once a case where the disclaimer language | ||||
| of an agreement was negated because it was not ``conspicuous'' to one of | ||||
| the parties.  Therefore, to make such language ``conspicuous'', people | ||||
| started placing it in bold or capitalizing the entire text.  It now seems | ||||
| the parties. Therefore, to make such language ``conspicuous'', people | ||||
| started placing it in bold or capitalizing the entire text. It now seems | ||||
| to be voodoo tradition of warranty disclaimer writing. | ||||
| 
 | ||||
| Some have argued the GPL is unenforceable in some jurisdictions because | ||||
| its disclaimer of warranties is impermissibly broad.  However, \S 11 | ||||
| contains a jurisdictional savings provision, which states that it is to be | ||||
| interpreted only as broadly as allowed by applicable law.  Such a | ||||
| provision ensures that both it, and the entire GPL, is enforceable in any | ||||
| jurisdiction, regardless of any particular law regarding the | ||||
| permissibility of certain warranty disclaimers. | ||||
| 
 | ||||
| Finally, one important point to remember when reading \S 11 is that \S 1 | ||||
| permits the sale of warranty as an additional service, which \S 11 | ||||
| affirms. | ||||
| permits the sale of warranty as an additional service, which \S 11 affirms. | ||||
| 
 | ||||
| \section{GPL, \S 12: Limitation of Liability} | ||||
| \label{GPLs12} | ||||
| 
 | ||||
| There are many types of warranties, and in some jurisdictions some of them | ||||
| cannot be disclaimed.  Therefore, usually agreements will have both a | ||||
| warranty disclaimer and a limitation of liability, as we have in \S 12. | ||||
| \S 11 thus gets rid of all implied warranties that can legally be | ||||
| disavowed.  \S 12, in turn, limits the liability of the actor for any | ||||
| cannot be disclaimed. Therefore, usually agreements will have both a | ||||
| warranty disclaimer and a limitation of liability, as we have in \S 12. \S | ||||
| 11 thus gets rid of all implied warranties that can legally be | ||||
| disavowed. \S 12, in turn, limits the liability of the actor for any | ||||
| warranties that cannot legally be disclaimed in a particular jurisdiction. | ||||
| 
 | ||||
| So ends the terms and conditions of the GNU General Public License. | ||||
| Again, some have argued the GPL is unenforceable in some jurisdictions | ||||
| because its limitation of liability is impermissibly broad.  However, \S | ||||
| 12, just like its sister, \S 11, contains a jurisdictional savings | ||||
| provision, which states that it is to be interpreted only as broadly as | ||||
| allowed by applicable law.  As stated above, such a provision ensures that | ||||
| both \S 12, and the entire GPL, is enforceable in any jurisdiction, | ||||
| regardless of any particular law regarding the permissibility of limiting | ||||
| liability. | ||||
| 
 | ||||
| So ends the terms and conditions of the GNU General Public License. | ||||
| 
 | ||||
| %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% | ||||
| \chapter{The Lesser GPL} | ||||
|  | @ -1988,11 +2457,9 @@ modification follow. | |||
| \end{center} | ||||
| 
 | ||||
| 
 | ||||
| %\renewcommand{\theenumi}{\alpha{enumi}} | ||||
| \begin{enumerate} | ||||
| 
 | ||||
| \addtocounter{enumi}{-1} | ||||
| 
 | ||||
| \item | ||||
| 
 | ||||
| This License applies to any program or other work which contains a notice | ||||
|  | @ -2933,4 +3400,6 @@ That's all there is to it! | |||
| % LocalWords:  proprietarize redistributors sublicense yyyy Gnomovision EULAs | ||||
| % LocalWords:  Yoyodyne FrontPage improvers Berne copyrightable Stallman's GPLs | ||||
| % LocalWords:  Lessig Lessig's UCITA pre PDAs CDs reshifts GPL's Gentoo glibc | ||||
| % LocalWords:  TrollTech administrivia LGPL's MontaVista OpenTV | ||||
| % LocalWords:  TrollTech administrivia LGPL's MontaVista OpenTV Mitek Arce | ||||
| % LocalWords:  unprotectable protectable Unfreedonia chipset CodeSourcery | ||||
| % LocalWords:  impermissibly | ||||
|  |  | |||
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	 Bradley M. Kuhn
						Bradley M. Kuhn