Re: More FSF hypocrisy

[Hyman Rosen]

Alexander Terekhov wrote:
> <quote source="Open Source Licensing: Virus or Virtue?">
>
> Even if the open source license [GPL] is binding, the copyleft 
> provision may still not be enforceable as to independent 
> proprietary code, in light of the intellectual property misuse 
> doctrine.

This may in fact be true (for a change!) but until a court rules
that way, the assumption must be that the GPL provisions are valid.

Also, from "IP and antirust" by Hovenkamp, Janis, and Lemley:
<http://books.google.com/books?id=ILcfV28n7WgC&pg=PT124&lpg=PT124&dq=patent+grantback+misuse&source=bl&ots=KCrvPfGsu1&sig=CCMAUtr8AnS46n5b6aASlIsUbx4&hl=en&ei=5q7LSdWSKKHNlQeluZHWCQ&sa=X&oi=book_result&resnum=1&ct=result#PPT126,M1>
    One significant determinant of the competitive effect of
    a grantback clause is the exclusivity of the grant of rights
    required.
    ....
    Nonexclusive licenses should almost never cause competitive
    concern.

And from the DOJ and FTC "Antitrust Guidelines for the Licensing
of Intellectual Property":
<http://www.usdoj.gov/atr/public/guidelines/0558.pdf>
    In the vast majority of cases, restraints in intellectual
    property licensing arrangements are evaluated under the rule
    of reason. The Agencies' general approach in analyzing a
    licensing restraint under the rule of reason is to inquire
    whether the restraint is likely to have anticompetitive effects
    and, if so, whether the restraint is reasonably necessary to
    achieve procompetitive benefits that outweigh those
    anticompetitive effects.

I am reading these excerpts as indicating that a copyright misuse
claim will fail against the GPL. It would be unwise for a distributor
to act as if this claim will succeed until a court actually establishes
that.