Glibc patent - Linux

This is a discussion on Glibc patent - Linux ; Mĺns Rullgĺrd wrote: > Chris Friesen writes: >>If I include a GPL'd header file in my source file, then my work is >>derivative of that header file (because I'm making use of the >>information contained within it) and thus the ...

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Thread: Glibc patent

  1. Re: Glibc patent

    Mĺns Rullgĺrd wrote:
    > Chris Friesen writes:


    >>If I include a GPL'd header file in my source file, then my work is
    >>derivative of that header file (because I'm making use of the
    >>information contained within it) and thus the GPL applies to
    >>distribution of my application.

    >
    >
    > Wrong. Interface specifications, such as those found in header files,
    > are not covered by copyright. Comments in a header file may be
    > covered, but those are not included in the compiled program anyway.


    Are you sure? A quick google search reveals the following:

    http://groups.google.com/group/linux...162fc81fdb710e

    Of particular note:

    'The Eleventh Circuit said that it would be "an incorrect statement of the
    law that interface specifications are not copyrightable as a matter of
    law" but did "join [the 9th, 2nd, and 5th] circuits in finding that
    external considerations such as compatibility may negate a finding of
    infringement."'


    >>If someone did a clean-room reverse-engineering of the glibc ABI and
    >>wrote a spec for it, and someone else implemented from scratch a way
    >>to interface with that ABI, then you might be able to get away with
    >>calling it "reverse engineering for purposes of interoperability" and
    >>not fall under the GPL.

    >
    > It's much simpler than that. Just download the specification from
    > opengroup.org and write your own implementation. It's been done many
    > times.


    I said "ABI", not "API". The discussion was for linking against glibc,
    so for that you need the binary interface.

    Chris

  2. Re: Glibc patent


    > David Schwartz wrote:
    >
    > > First, linking does not create a derivative work, which is the only
    > > thing that can extend the GPL's authority from one work to another.
    > > Legally, creating a derivative work must be a creative authoring
    > > process, and linking is automated and mechanical. (Except for a few
    > > exceptions accidentally created by statute and not relevant here.)


    > I would suggest that the issue is not the act of linking, but the very
    > design of the work.


    Certainly the design of the work could make it a derivative work. It
    would have to contain significant protectable expression from the work
    beyond what was needed just to make the two works interoperate. (The
    expression taken from the work would have to be protectable in this
    operation context, see the details below.)

    I would hope nobody would read my saying "linking doesn't create a
    derivative work" to mean that the result of a linking process can't
    ever be a work that is derivative of some other work. Linking creates a
    mechanical aggregation of the input works. If one of those input works
    is a derivative work, so is the output work.

    > If I include a GPL'd header file in my source file, then my work is
    > derivative of that header file (because I'm making use of the
    > information contained within it) and thus the GPL applies to
    > distribution of my application.


    But that's what's needed to make the two works interoperate. Only a
    patent can protect function, copyrights protect expression.

    To put it another way, copyrights protect an idea that can be expressed
    any number of ways and when one creative one is chosen. If including
    the Linux kernel header files is the only practical way to make a Linux
    driver for a network card, then it is the only way to express an idea,
    and in that context, is not protectable expression.

    It is funny that the GPL crowd opposes software patents but then claims
    they can protect, under copyright, all practical ways to make a Linux
    driver for an ATI X800 graphics card.

    In any event, if the work is a library, this clearly won't fly. There
    is *NO* way to use library source code other than to compile it,
    include its header files in other code, and compile, link and run that
    code. So a license to use must include the right to do those things.

    > The only reason that it is possible to make use of linux kernel header
    > files when writing userspace programs is that the kernel source code
    > specifically exempts from consideration "programs that use kernel
    > services by normal system calls". Otherwise they would be impacted by
    > their use of GPL'd header files.


    No, that's not the reason. The reason is in copyright law. Linus opted
    to clarify his understanding of the law in the hopes that it would
    reduce perceived risk. There were other reasons as well, but very few
    people believe that Linus can unilaterally modify the license Linux is
    shipped with and have that have any legal effect.

    > If someone did a clean-room reverse-engineering of the glibc ABI and
    > wrote a spec for it, and someone else implemented from scratch a way to
    > interface with that ABI, then you might be able to get away with calling
    > it "reverse engineering for purposes of interoperability" and not fall
    > under the GPL.


    The reduced practicality of that demonstrates that this the best way to
    express this idea. Anything that is the one best way to express an idea
    cannot be copyrighted. Copyright can only protect one particular way of
    expressing an idea that can be expressed many equally-good ways. It
    protects the creative choice of the one particular way.

    See for example Lexmark v. Static Controls. Lexmark made a printer that
    required a cartridge to contain a particular piece of software. It
    might have been possible to make another piece of software, but experts
    agreed that the most practical way to make the cartridge work with the
    printer was Lexmark's TLP program. The courts therefore held that as
    used to make a cartridge work with the printer, the TLP program was not
    protected by copryight, since it was the only practical way to do a
    particular thing (make a cartridge that worked with that printer).

    Even if the TLP contains protectable expression, when you take only
    what you need as the best practical way to interoperate, you are not
    taking protectable expression, you are taking function. Function cannot
    be copyrighted, that's what patents are for.

    Similarly, including headers from the kernel or the library is the only
    reasonably practical way to make things work with that library or OS,
    it is not one creative choice from a vast number of choices. Copyright
    does not protect only practical ways. It requires a vast number of
    equally practical ways and one creative choice.

    If I legitimately own a copy of the Linux kernel or a library, I have
    the legal right to make use of it. You cannot use copyright to stop me.
    You cannot claim that my ordinary use created a derivative work because
    takings needed for ordinary use *are* use, and use does not create
    derivative works.

    DS


  3. Re: Glibc patent

    In article <456E1047.3030808@mail.usask.ca>,
    Chris Friesen wrote:
    > If I include a GPL'd header file in my source file, then my work is
    > derivative of that header file (because I'm making use of the
    > information contained within it) and thus the GPL applies to
    > distribution of my application.


    Copyright does not cover "making use of information contained within".
    You must look at what you are using and how you are using it.
    Definitions of constants, declarations of data structures, and things
    like that, that provide interfaces to, say, standard system functions or
    libraries, for example, are probably not subject to copyright, so using
    those from a GPL'ed header file would be fine. Things like macros that
    expand to code will be, in many cases covered under the merger doctrine,
    and so be OK to use without your code falling under GPL.

    You must always keep in mind that GPL is a copyright license. The first
    step in any GPL problem is to ask if you are doing anything that
    requires permission of the copyright holder. If the answer is "no", GPL
    is irrelevant.

    --
    --Tim Smith

  4. Re: Glibc patent


    Tim Smith wrote:

    > You must always keep in mind that GPL is a copyright license. The first
    > step in any GPL problem is to ask if you are doing anything that
    > requires permission of the copyright holder. If the answer is "no", GPL
    > is irrelevant.


    And the flip side of this is that it is impossible to violate the GPL.
    If you fail to comply with the terms of the GPL, it doesn't grant you a
    license. If the GPL does not grant you a license, it does not impose
    any requirements on you. So there is no way you can violate it.

    Of course, if you fail to comply with the GPL, you cannot reasonably
    argue that the GPL licensed you to do things that you otherwise have no
    right to do.

    An analogy would be a sign that says "free dirt". If you stole my
    tractor, I wouldn't argue that you violated the sign which says that
    only dirt is free. I would simply say you stole my tractor, and you
    cannot argue that the sign gave you the right to do it, since it only
    gives away dirt. You cannot violate the sign. (The crux is that the
    tractor is mine, and you have no right to take it, but you took it. The
    sign didn't give you the right. Same with the GPL and copyright
    infringement.)

    DS


  5. Re: Glibc patent


    Chris Friesen wrote:

    > Mĺns Rullgĺrd wrote:


    > > Wrong. Interface specifications, such as those found in header files,
    > > are not covered by copyright. Comments in a header file may be
    > > covered, but those are not included in the compiled program anyway.


    > 'The Eleventh Circuit said that it would be "an incorrect statement of the
    > law that interface specifications are not copyrightable as a matter of
    > law" but did "join [the 9th, 2nd, and 5th] circuits in finding that
    > external considerations such as compatibility may negate a finding of
    > infringement."'


    Yeah, it's not simple. Interface specifications are definitely covered
    by copyright when they contain significant protected expression.
    However, the copyright does not protect their function, and when taking
    those specifications is the only practical way to access a particular
    function or interoperate with a particular product, they are probably
    not protected in that context.

    It is incorrect to say interface specifications are not copyrightable.
    It is incorrect to say you can take whatever you want from header files
    for any purpose. However, you almost certainly can take what you need
    to interoperate or to use a work you lawfully acquired.

    DS


  6. Re: Glibc patent

    "JoelKatz" writes:
    > Rainer Weikusat wrote:
    >> > First, linking does not create a derivative work, which is the only
    >> > thing that can extend the GPL's authority from one work to another.

    >
    >> And publishing novel where each odd page is a reproduction of set of
    >> Mickey Mouse comic pictures will certainly not violate a copyright
    >> held by Walt Disney. Or not? That would be a simple experiment to
    >> make.

    >
    > It would violate the copyright, for one of two reasons, both of which
    > prove my point.
    >
    > One argument would be that the result is a derivative work because the
    > choice to alternate pages of those particular works is creative. You
    > would then be violating the copyright because you have no right to
    > create derivative works of Mickey Mouse. I find this argument weak, but
    > it's always possible a court could accept it. Linking is definitely not
    > creative in this sense.


    Are you aware of the existence of an art from called 'a collage'? This a
    certain arrangement of bits and pieces (usually pictures and short
    words or sentences) that have been cut (usually) out of newspapers and
    magazines? This means it is a certain arrangement and combination of
    things other people hold the copyrights to.

    If you consider this a weak form of creativity, that would be a
    personal opinion about 'art'. A more 'current' example would so-called
    'Rap Music'. People (at least in Germany) have already been convicted
    (respectively, have rather paid than trying to defend) for copyright
    infringement because they copied parts of other copyrighted musical
    works togehter to from a new one.

    > The other argument would be that the result is not a derivative work
    > but a mere combination or compilation. In this case, you would be
    > violating the copyright because you have no right to distribute
    > verbatim copies of Mickey Mouse comic pictures.
    >
    > However, if we were in the second case (as we are with linking)


    I don't think there is much reason to argue about that. Your basic
    position is that GPL'd software is actually in the public domain or
    that it should be forced to be in the public domain.

    This can be proven (or disproven) experimentally: Violate it
    publically, get sued and win. To date all combinations of the first
    two and 'give in' have occurred.

  7. Re: Glibc patent


    David Schwartz wrote:

    [... ATI ...]

    http://www.fsf.org/photos/rms-sign.jpg

    Sorry, just can't resist, DS.

    regards,
    alexander.

  8. Re: Glibc patent


    JoelKatz wrote:
    >
    > Tim Smith wrote:
    >
    > > You must always keep in mind that GPL is a copyright license. The first
    > > step in any GPL problem is to ask if you are doing anything that
    > > requires permission of the copyright holder. If the answer is "no", GPL
    > > is irrelevant.

    >
    > And the flip side of this is that it is impossible to violate the GPL.


    So how come that IBM is suing SCO for breach of the GPL contract?

    (Saying something about "nominal" contract damages and all that breach of
    contract stuff...)

    Eh, Katz?

    regards,
    alexander.

  9. Re: Glibc patent


    Rainer Weikusat wrote:

    [... [L]GPL'd stuff ...]

    > that it should be forced to be in the public domain.


    Exactly. Copyright misuse, preemption under 301, and all that.

    First:

    "Eben Moglen: Yeh, I also make lawyers, I teach something called "Law
    and The Information Society", I'm not too keen on "cyberspace". I'm the
    general counsel of the Free Software Foundation, and I'm trying to
    report on the revolution which is destroying intellectual property. Of
    which I am entirely in favour."
    http://ciaran.compsoc.com/texts/eben...a-and-you.html

    Second:

    "Eben Moglen*

    I am a historian and a computer programmer, but primarily I am a lawyer.
    My research, ongoing for a decade, follows a purely experimental
    paradigm:

    1. Try to create freedom by destroying illegitimate power sheltered
    behind intellectual property law.

    2. See what happens.

    Early results are encouraging.

    Current research proceeds by facilitating high-energy collisions between
    widely-dispersed non-homogeneous randomly-motivated incremental acts of
    individual creativity and large masses of ill-gotten wealth. The primary
    collision domain is the thin layer of executable software that enables
    production and distribution of all zero marginal-cost goods (bitstreams)
    in a globally transformed economy.[1] Ongoing complete destruction of
    monopoly control in this layer triggers secondary fission in adjacent
    layers (music; video; literary as well as scientific, technical and
    medical publishing; higher education policy; criminal prosecution vel
    non of scientists and scholars; etc.) Observation is complicated because
    collisions occur in an atmosphere heavily contaminated by wide-scale
    political bribery.[2] Despite observational difficulties, multiple
    independent observers report increased likelihood of basic
    transformative shifts in loci of political control and social authority.
    This phenomenon is conventionally described in the relevant literature
    as ``revolution.''[3]

    * Professor of Law, Columbia Law School. General Counsel, Free Software
    Foundation.

    1 See Moglen, Anarchism Triumphant: Free Software and the Death of
    Copyright, First Monday (1999) (mult. repr.) (mult. trans.).

    2 See Moglen, The Invisible Barbecue, 97 Colum. L. Rev. 945 (1997).

    3 See Moglen, The DotCommunist Manifesto (2003). See and hear Moglen,
    The DotCommunist Manifesto: How Culture Became Property and What We're
    Going to Do About It (University of North Carolina, Chapel Hill,
    November 8, 2001). See also Crane Brinton, The Anatomy of Revolution
    (New York, Prentice-Hall: 1952) (mult. repr.) (unfree); Barrington
    Moore, Jr., Social Origins of Dictatorship and Democracy; Lord and
    Peasant in the Making of the Modern World (Boston, Beacon Press: 1966)
    (mult. repr.) (unfree); Karl Marx & Friedrich Engels, Manifesto of the
    Communist Party, (English ed. London, 1888) (Engels ed.) (mult. repr.)
    (mult. trans.)."
    http://emoglen.law.columbia.edu/research-agenda.html

    Next:
    "As for Novell, the charge is rather simple. The agreement violates GPL
    2. It certainly does so in spirit if not the letter. But, I think a case
    can easily be made that it also violates the letter. . .

    But, what tort has Microsoft committed? And does it matter that Novell
    apparently called them first? At the present time “intentional
    interference with contractual relations” comes to mind. . .

    Now it would appear that the FSF (Free Software Foundation) as holders
    of many of the copyrights relating to the Linux kernel and other
    applications has decided not to pursue legal redress against Novell or
    even Microsoft. Or, at least that is the current position. That may
    change however."
    http://lamlaw.com/tiki-read_article.php?articleId=23

    How can an esteemed professor of law (Moglen) who favors the
    "destruction" of intellectual property pass up the opportunity for legal
    redress against Novell or Microsoft thereby demonstrating to the world
    that the GPL is the way to accomplish a goal?

    Could it be possible that Moglen does *not* wish court scrutiny of the
    GPL under copyright and contract law?
    1) Perhaps the is GPL is unenforcable under contract law.
    2) Perhaps the GPL is preempted under 17 USC sec. 301.
    3) Perhaps the GPL is a misuse of copyright.

    One things seems certain. Moglen is obviously in no hurry to find out.

    Three guarantees in life:
    1) Death.
    2) Taxes.
    3) Pigs will fly before the Free Software Foundation ever files to
    enforce the mighty GPL in a U.S. court.

    regards,
    alexander.

  10. Re: Glibc patent

    After takin' a swig o' grog, Alexander Terekhov belched out this bit o' wisdom:

    > Three guarantees in life:
    > 1) Death.
    > 2) Taxes.
    > 3) Pigs will fly before the Free Software Foundation ever files to
    > enforce the mighty GPL in a U.S. court.


    Would you mind not posting the same post repetitively?

    --
    Welcome to DLL Hell.

  11. Re: Glibc patent

    Alexander Terekhov wrote:

    > So how come that IBM is suing SCO for breach of the GPL contract?


    They're not. The GPL isn't a contract.

    The GPL simply says, "if you abide by these terms then you have
    additional rights that you wouldn't otherwise have". If you don't abide
    by the specified terms, then standard copyright applies.

    IBM can claim that SCO broke the terms of the GPL, but this just means
    that copyright law applies.

    Chris

  12. Re: Glibc patent


    Chris Friesen wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > So how come that IBM is suing SCO for breach of the GPL contract?

    >
    > They're not. The GPL isn't a contract.


    Go to doctor.

    >
    > The GPL simply says, "if you abide by these terms then you have
    > additional rights that you wouldn't otherwise have". If you don't abide
    > by the specified terms, then standard copyright applies.
    >
    > IBM can claim that SCO broke the terms of the GPL, but this just means
    > that copyright law applies.


    IBM argues throughout its MEMORANDUM IN OPPOSITION that the GPL license
    is a contract.

    For example IBM argues forcefully that

    "SCO's statement. . . [N]ot only flies in the face of the unambiguous
    language of the GPL and standard rules of contract interpretation. . ."

    and

    "A stated intention to challenge "the viability and life of the license
    itself constitutes a "distinct and unequivocal refusal to perform under
    the license, thus causing a material breach, or repudiation, of the
    contract". . ."

    etc. etc.

    Does this mean that the esteemed Eben Moglen, RMS and his faithful
    disciples have simply been blathering reams of FUD when claiming that
    the "The GPL is a License, Not a Contract"?
    http://www.groklaw.net/article.php?s...31214210634851

    regards,
    alexander.

    --
    http://www.fsf.org/photos/rms-sign.jpg

  13. Re: Glibc patent

    Alexander Terekhov wrote:
    >Chris Friesen wrote:
    >>
    >> Alexander Terekhov wrote:
    >>
    >> > So how come that IBM is suing SCO for breach of the GPL contract?

    >>
    >> They're not. The GPL isn't a contract.

    >
    >Go to doctor.


    For legal advice, the "doctor" should have a *Juris* Doctorate.

    >>
    >> The GPL simply says, "if you abide by these terms then you have
    >> additional rights that you wouldn't otherwise have". If you don't abide
    >> by the specified terms, then standard copyright applies.
    >>
    >> IBM can claim that SCO broke the terms of the GPL, but this just means
    >> that copyright law applies.

    >
    >IBM argues throughout its MEMORANDUM IN OPPOSITION that the GPL license
    >is a contract.


    No they do not.

    >For example IBM argues forcefully that
    >
    >"SCO's statement. . . [N]ot only flies in the face of the unambiguous
    >language of the GPL and standard rules of contract interpretation. . ."


    That says the GPL and "standard rules of contract intepretation"
    are two distinctly separate things, *both* of which SCO's
    statements fly in the face of. Not hardly a forceful argument
    that they are the same!

    >and
    >
    >"A stated intention to challenge "the viability and life of the license
    >itself constitutes a "distinct and unequivocal refusal to perform under
    >the license, thus causing a material breach, or repudiation, of the
    >contract". . ."
    >
    >etc. etc.


    We can't tell from the context you've provided what that says.
    You quote something that quotes something else. What is it? It
    appears again that "license" and "contract" are being used to
    distinguish a difference between to different things. So the
    question is, what contract is that referencing?

    In fact, if you would do just a little bit of research you would
    find that IBM is quoting from a appeals court ruling, and indeed
    the license being discussed is one item, while the contract
    mentioned is a separate entity.

    Your claim that IBM is forcefully arguing that a license is a
    contract appears to be based on poor English and/or logic
    skills.

    >Does this mean that the esteemed Eben Moglen, RMS and his faithful
    >disciples have simply been blathering reams of FUD when claiming that
    >the "The GPL is a License, Not a Contract"?


    No, it means you probably do not understand the English language
    well enough to read legal documents and arrive at valid
    interpretations. An unfortunate lack which afflicts *most*
    people...

    >http://www.groklaw.net/article.php?s...31214210634851


    That is indeed an *excellent* article. You should read it
    carefully.

    Here is another, also written by Pamela Jones, which is perhaps
    better organized and presents a sharper and more obvious
    description.

    http://lwn.net/Articles/61292/

    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  14. Re: Glibc patent


    "Floyd L. Davidson" wrote:
    [...]
    > >"A stated intention to challenge "the viability and life of the license
    > >itself constitutes a "distinct and unequivocal refusal to perform under
    > >the license, thus causing a material breach, or repudiation, of the
    > >contract". . ."
    > >
    > >etc. etc.

    >
    > We can't tell from the context you've provided what that says.
    > You quote something that quotes something else. What is it? It


    The context is Dow Chemical case (on repudiation and termination) of IP
    license contract. IBM cited it. Intellectual property license are
    contacts. They convey property rights. State permits licenses (driver
    licenses, gun dealership, public lottery permits, etc.) to do something
    regulated by government are not contracts and don't convey property
    rights. Law 101. The GPL is "license not a contract" in the GNU Republic
    only (hilarious brain-free zone with non-existent software IP legal
    regime announced in Moglen's "The dotCommunist Manifesto"), where
    distributing software under any "license" other than the GPL (which is
    akin to a lottery or any other permits from state and is of course not a
    contract or a property right in the GNU Republic] or "GPL compatible"
    license (but that's for extra regulation fee) is a felony under
    unwritten GNU law.

    Straight from IBM's mouth:

    -------
    A stated intention to challenge "the viability and life of the license
    itself constitutes a "distinct and unequivocal refusal to perform under
    the license, thus causing a material breach, or repudiation, of the
    contract". Dow Chemical Co. v. United States, 226 F.3d 1334, 1345 (Fed.
    Cir. 2000). 12 SCO has challenged - and continues to challenge on this
    motion - the "validity and life" of the GPL.

    12 See also Restatement (Second) of Contracts § 250 cmt.b (1981)
    (stating that "language that under a fair reading 'amounts to a
    statement of intention not to perform except on conditions which go
    beyond the contract' constitutes a repudiation") (quoting Comment 2 to
    Uniform Commercial Code § 2-610).
    -------

    Here's more stuff from Dow Chemical:

    -------
    III. The License

    The Court of Federal Claims held on motion for summary judgment that
    "the 1972 license must be considered effectively terminated ab initio."
    Dow II, 32 Fed. Cl. at 16. We review the court’s grant of summary
    judgment de novo. See Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575,
    29 USPQ2d 1373, 1377 (Fed. Cir. 1994). Summary judgment is appropriate
    when there is no genuine issue as to any material fact and the moving
    party is entitled to judgment as a matter of law. See U.S. Ct. Fed. Cl.
    R. 56(c); Fed. R. Civ. P. 56(c).

    The government argues that the Court of Federal Claims improperly
    treated the license as void ab initio. The government contends that it
    did not repudiate the license because its refusal to pay royalties was
    based on the belief that it had not practiced the invention. The
    government continues to view the license as being "in full force and
    effect," and argues that Dow’s notice of termination dated January 10,
    1985, was ineffective.

    Dow contends that the government’s failure to pay royalties constitutes
    a material breach by repudiation which permitted Dow to rescind the
    license. Dow argues that the Court of Federal Claims correctly held that
    the license is void ab initio because it was repudiated by the
    government.

    We consider first whether the government repudiated the license.
    "Repudiation is a statement by the obligor to the obligee indicating
    that the obligor will commit a breach that would itself give the obligee
    a claim for damages for total breach." Mobil Oil Exploration & Producing
    Southeast, Inc. v. United States, ___U.S. ___, ___, 120 S. Ct. 2423,
    2429 (2000) (citing Restatement (Second) of Contracts § 250 (1979))
    (internal quotations omitted). Repudiation occurs when one party refuses
    to perform and communicates that refusal distinctly and unqualifiedly to
    the other party. See DeKonty v. United States, 922 F.2d 826, 827-828
    (Fed. Cir. 1991) (citing Dingley v. Oler, 117 U.S. 490, 499-500 (1886)).
    The injured party can choose between terminating the contract or
    continuing it. See St. Paul Plow-Works v. Starling, 140 U.S. 184 (1891);
    McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1327 (Fed. Cir.
    1999); Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313
    (Ct. Cl. 1976).

    On July 9, 1975, Dow requested from the government an accounting and
    payment of royalties provided for in the license. The government
    responded on December 28, 1976, that it did not consider any royalties
    due on the basis that it was not practicing the invention of the ‘039
    patent. Over the next two years the government and Dow continued to
    discuss the government’s position, as well as reasonable royalty rates,
    through correspondence and meetings.

    On November 2, 1978, the government informed Dow that "new information
    has been developed which raise[s] seriously litigable issues" as to
    validity and infringement and the "viability and life of any license
    issued" and that if the ‘039 patent is valid "it has not been infringed
    by [government] activities which follow the prior art." The government
    stated in the November 1978 letter that it was the [government’s] final
    decision that there has been no substantial, if any, practice of the
    claimed process which would give rise to a valid claim for payment for
    royalties under the alleged license or a claim for compensation based on
    infringement of the patent.

    Furthermore, the letter said that "[n]o action will be taken on any
    further requests for reconsideration of this matter."

    On January 10, 1985, approximately six years after the November 1978
    letter and two years after this proceeding was commenced, Dow sent the
    government a letter terminating the license due to the government’s
    material breach by failing to pay royalties, effective "either as of the
    date of the breach or the date of this Notice, whichever is legally
    earlier."

    The Court of Federal Claims determined that because the government never
    paid any royalties, did not intend to pay any royalties, and contested
    the validity of the patent as well as the viability of the license, the
    government's conduct "constituted a classic breach of contract by
    repudiation." Dow II, 32 Fed. Cl. at 18. The court then found that Dow
    had lawfully terminated its contract with the government, and held that
    because Dow’s termination abrogated the license to the extent it
    remained unperformed, and because the government had never performed
    under the license, Dow’s termination had ab initio effect, rendering the
    license void from its inception. Id.

    The government’s November 2, 1978 letter, "clearly and unequivocally
    expressed its intention to never pay royalties," id., and furthermore
    showed an intention to challenge not only the validity of the patent,
    but also the viability and life of the license itself. These actions of
    the government constitute a distinct and unequivocal refusal to perform
    under the license, thus causing a material breach, or repudiation, of
    the contract. Accordingly, there are legally sufficient grounds for
    upholding the determination of the Court of Federal Claims that the
    government materially breached and repudiated the license."

    ....

    A material breach, or repudiation, gives rise to a right to exercise a
    termination provision in a contract. See, e.g., McDonnell Douglas, 182
    F.3d at 1327; Cities Serv., 543 F.2d at 1313. Moreover, under the
    circumstances of this case, the absence of an express termination clause
    would not ordinarily prevent a party from ending the contract. See,
    e.g., Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 10
    (1st Cir. 2000) ("Every contract involves a bargained-for exchange of
    obligations, the material breach of which by one party gives the other
    party a right to terminate."); Apex Pool Equip. Corp. v. Lee, 419 F.2d
    556, 562 (2d Cir. 1969) (stating that a right to terminate upon material
    breach is implied in many contracts); see also Restatement (Second) of
    Contracts § 237 (1981).

    As to the government’s waiver argument, we are not persuaded. This court
    stated in McDonnell Douglas, 182 F.3d at 1327, that "[a] party that
    chooses to proceed with the contract – even if it is the government . .
    .. – does not thereby waive its right to terminate for default." Although
    one of our predecessor courts stated that a failure "to take action to
    end the agreement within a reasonable time after becoming aware of the
    facts" may result in a waiver, it also noted that the strict application
    of the election [waiver] doctrine, i.e., the doctrine that a
    non-defaulting party has an election either to end the contract or to
    continue performance, has sometimes been modified. Cities Serv., 543
    F.2d at 1313 (citing Northern Helex Co. v. United States, 455 F.2d 546,
    553 (Ct. Cl. 1972)). In Cities Service, the court also noted that:

    [s]ome courts have shared Professor Corbin’s view that an election
    [waiver] should not be conclusive unless facts giving rise to an
    estoppel exist; either the breaching party must have changed his
    position in reliance on the injured party’s failure to cancel or the
    injured party’s conduct must be such that it would be unjust to allow
    him to change his position.

    543 F.2d at 1314 (citing 5A A. Corbin, Contracts § 1220 (1964)).

    Applying these principles, we conclude that the government’s material
    breach and repudiation of the license gave Dow the right to either
    terminate the license or continue to treat it as outstanding. The
    government’s challenge to the validity of the patent and the viability
    of the license, together with the refusal to pay any royalties, made the
    absence of a termination clause in the license immaterial. Under these
    circumstances, a termination right is properly implied. See Ross-Simons,
    217 F.3d at 10; Apex Pool, 419 F.2d at 562. During the ensuing period
    from 1978 until suit was filed and the license was formally terminated
    in January 1985, there is no evidence that the government was prejudiced
    by Dow’s delay in terminating the license. Further, the government has
    not argued that Dow was estopped from terminating the license for
    reasons similar to those suggested by Professor Corbin. See Cities
    Serv., 543 F.2d at 1314.

    We conclude that the government repudiated the license, and that Dow had
    a right to terminate the license that was not waived. Consequently,
    Dow’s letter of January 10, 1985 effected a termination of the license
    on the date it was received by the government, viz., January 18, 1985."

    regards,
    alexander.

    --
    "Programmers of the world, you have nothing to lose but your chains!
    Linux: An example ..."

    -- http://www.marxist.ca/content/view/27/52/

  15. Re: Glibc patent

    -----BEGIN PGP SIGNED MESSAGE-----
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    On Thu, 30 Nov 2006 15:21:04 +0100,
    Alexander Terekhov wrote:
    >
    > JoelKatz wrote:
    >>
    >> Tim Smith wrote:
    >>
    >> > You must always keep in mind that GPL is a copyright license. The first
    >> > step in any GPL problem is to ask if you are doing anything that
    >> > requires permission of the copyright holder. If the answer is "no", GPL
    >> > is irrelevant.

    >>
    >> And the flip side of this is that it is impossible to violate the GPL.

    >
    > So how come that IBM is suing SCO for breach of the GPL contract?
    >



    they are? got a case cite?

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    iZMVpyC3I+6iQ8wQ+T6uwLs=
    =x7T0
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    --
    Jim Richardson http://www.eskimo.com/~warlock
    "If we could just get everyone to close their eyes and
    visualize world peace for an hour, imagine how serene and
    quiet it would be until the looting started."

  16. Re: Glibc patent


    Jim Richardson wrote:
    >
    > -----BEGIN PGP SIGNED MESSAGE-----
    > Hash: SHA1
    >
    > On Thu, 30 Nov 2006 15:21:04 +0100,
    > Alexander Terekhov wrote:
    > >
    > > JoelKatz wrote:
    > >>
    > >> Tim Smith wrote:
    > >>
    > >> > You must always keep in mind that GPL is a copyright license. The first
    > >> > step in any GPL problem is to ask if you are doing anything that
    > >> > requires permission of the copyright holder. If the answer is "no", GPL
    > >> > is irrelevant.
    > >>
    > >> And the flip side of this is that it is impossible to violate the GPL.

    > >
    > > So how come that IBM is suing SCO for breach of the GPL contract?
    > >

    >
    > they are? got a case cite?


    THE SCO GROUP, INC.
    Plaintiff/Counterclaim-Defendant,

    v.

    INTERNATIONAL BUSINESS
    MACHINES CORPORATION,
    Defendant/Counterclaim-Plaintiff.

    Civil No. 2:03CV-0294 DAK

    Honorable Dale A. Kimball

    Magistrate Judge Brooke C. Wells

    IBM asserted two GPL (counter) claims. The first one was breach of
    contract claim. I mean IBM's SIXTH COUNTERCLAIM Breach of the GNU
    General Public License against SCO. No violation of the copyright
    act is alleged. "SCO accepted the terms of the GPL... IBM is
    entitled to a declaration that SCO's rights under the GPL terminated,
    an injunction prohibiting SCO from its continuing and threatened
    breaches of the GPL and an award of damages in an amount to be
    determined at trial."

    Then, a month or so later IBM nicely trolled SCO with Moglen's
    "retroactive copyright infringement" theory (in another
    counterclaim which was asserted a month or two later). I suggest
    you read SCO's reply.

    See also

    http://www.groklaw.net/article.php?s...61123091221786
    (The GPL, Stage Front and Center - IBM Answers SCO's Attack)

    regards,
    alexander.

  17. Re: Glibc patent


    Chris Friesen wrote:

    [... GPL ...]

    > copyright law applies.


    Yet IBM talks about New York law on preambles and other prefatory
    language in a contract aiding its interpretation. How come that,
    oh paragon of intellect?

    "the Court need not reach the choice of law issue because Utah law
    and New York law are in accord on the issues that must be reached
    to address SCO's sole argument on this motion, namely, that SCO did
    not breach the GPL. Throughout this brief, IBM cites to both Utah
    law and New York law."

    If I were SCO I'd hire 48 US kids with copyrights in Linux to join
    IBM's GPL counter claim so that IBM can impress the judge in
    Utah with cites to laws of all 50 states. Then I'd trigger IBM to
    go international (hiring kids outside US).

    regards,
    alexander.

  18. Re: Glibc patent

    Alexander Terekhov wrote:
    >"Floyd L. Davidson" wrote:
    >[...]
    >> >"A stated intention to challenge "the viability and life of the license
    >> >itself constitutes a "distinct and unequivocal refusal to perform under
    >> >the license, thus causing a material breach, or repudiation, of the
    >> >contract". . ."
    >> >
    >> >etc. etc.

    >>
    >> We can't tell from the context you've provided what that says.
    >> You quote something that quotes something else. What is it? It

    >
    >The context is Dow Chemical case (on repudiation and termination) of IP
    >license contract. IBM cited it. Intellectual property license are
    >contacts. They convey property rights. State permits licenses (driver


    The fact that it is property rights, has no bearing on the difference
    between a license and a contract, which is what you are claiming here:

    >licenses, gun dealership, public lottery permits, etc.) to do something
    >regulated by government are not contracts and don't convey property
    >rights. Law 101.


    Law 101: A license is unary, and grants permission without any
    agreement to a return from the other party. A contract is
    m-ary, and requires at least two parties agreeing to exchange
    something.

    >The GPL is "license not a contract" in the GNU Republic


    Simple matter of law. You can ignore it all you like, but
    courts will not.

    [other ridiculous tripe snipped]

    >Straight from IBM's mouth:
    >
    >-------
    >A stated intention to challenge "the viability and life of the license
    >itself constitutes a "distinct and unequivocal refusal to perform under
    >the license, thus causing a material breach, or repudiation, of the
    >contract". Dow Chemical Co. v. United States, 226 F.3d 1334, 1345 (Fed.
    >Cir. 2000). 12 SCO has challenged - and continues to challenge on this
    >motion - the "validity and life" of the GPL.


    I've already pointed out to you that the Dow v US involves a
    contract *and* a license, separately.

    You have demonstrated that you cannot read these cites and
    understand them. You appear to simply have a mental block on
    it. I am not going to go to the trouble to track down every
    single one of them and show you what the mean.

    [huge snip]
    >The government's November 2, 1978 letter, "clearly and unequivocally
    >expressed its intention to never pay royalties," id., and furthermore
    >showed an intention to challenge not only the validity of the patent,
    >but also the viability and life of the license itself. These actions of
    >the government constitute a distinct and unequivocal refusal to perform
    >under the license, thus causing a material breach, or repudiation, of
    >the contract. Accordingly, there are legally sufficient grounds for
    >upholding the determination of the Court of Federal Claims that the
    >government materially breached and repudiated the license."


    You can't seem to get it through your head that the reason that
    text continually makes references to both the terms "contract"
    and "license" is because there are *two* *distinctly* *separate*
    *entities* being discussed.

    Of course, you also have to realize that a license can be
    included in a contract. And also that there is no such thing as
    "License Law"... it is part of Contract Law.

    > See,
    >e.g., Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 10
    >(1st Cir. 2000) ("Every contract involves a bargained-for exchange of
    >obligations, the material breach of which by one party gives the other
    >party a right to terminate.");


    You have just cited a court ruling that provides *precisely* the
    same definition of a contract that the FSF repeatedly points out
    is the reason the GPL is indead a license as opposed to a
    contract.

    You understand, one would hope, that this demonstrates your
    entire argument to be faulty.



    What is the point of quoting such a vast amount of text if you don't
    read and understand it?

    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  19. Re: Glibc patent

    Alexander Terekhov wrote:
    >Jim Richardson wrote:
    >> > So how come that IBM is suing SCO for breach of the GPL contract?


    Nothing you show below indicates that IBM is suing SCO for any
    "breach of the GPL contract".

    Citing lots of complex language is a good trick, but it won't fly here...

    >
    >IBM asserted two GPL (counter) claims. The first one was breach of
    >contract claim. I mean IBM's SIXTH COUNTERCLAIM Breach of the GNU


    The only one claiming here that there a breach of contract issue
    with the GPL is *you*. The quote below does not support your
    above statement.

    >General Public License against SCO. No violation of the copyright
    >act is alleged. "SCO accepted the terms of the GPL... IBM is
    >entitled to a declaration that SCO's rights under the GPL terminated,
    >an injunction prohibiting SCO from its continuing and threatened
    >breaches of the GPL and an award of damages in an amount to be
    >determined at trial."
    >
    >Then, a month or so later IBM nicely trolled SCO with Moglen's
    >"retroactive copyright infringement" theory (in another
    >counterclaim which was asserted a month or two later). I suggest
    >you read SCO's reply.
    >
    >See also
    >
    >http://www.groklaw.net/article.php?s...61123091221786

    (The GPL, Stage Front and Center - IBM Answers SCO's Attack)

    Nothing in any of that supports your claims.

    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  20. Re: Glibc patent

    A copyright license is a contract, stupid. The GPL is a bilateral
    contract. Licensor's promise is his covenant not to sue for property
    right infringement. Licensee's promise is whatever licensor decrees
    in license contract (e.g. blah-blah "written offer, valid for at
    least three years" and other obligations/covenants).

    ------
    We think that the payment of royalties and the inclusion of a notice
    crediting James's authorship are to be considered covenants, not
    conditions. The construction of the licensing agreement is governed
    by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d
    150, 153 (2d Cir. 1968). Generally speaking, New York respects a
    presumption that terms of a contract are covenants rather than
    conditions ... 'The law favors covenants, rather than conditions
    precedent.'), aff'd , 193 N.Y. 661 (1908)." Graham id.
    ------

    ------
    In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003)
    (“If a breach of contract (and a copyright license is just a type of
    contract) . . . ”); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d
    917, 920 (Fed. Cir. 1995) (“Whether express or implied, a license is a
    contract").
    ------

    Repeat 10 times: a copyright license is a contract.

    Prof. Nimmer also thinks that RMS is a lunatic: "GPL has a schizophrenic
    approach... The Preamble to GPL refers to the creation of obligations
    consistent with a contractual relationship. The Preamble states: “To
    protect your rights, we need to make restrictions ... These restrictions
    translate to certain responsibilities for you if you distribute copies
    of the software, or if you modify it.” The reference to “responsibilities”
    indicates contractual obligations undertaken by accepting the terms of
    the license and creating a contract."

    Lee Hollaar (see http://digital-law-online.info/lpdi1.0/treatise2.html):

    ------
    As for the reproduction right (1) implying the distribution right (3),
    it's not an implication, but a special rule in United States copyright
    law spelled out in Section 109. (It is commonly called "first sale,"
    but the actual parameters of the rule are specified in the statute
    and not some lay reading of "first," "sale," or even "first sale.")

    The heart of the provision is its first sentence:
    Notwithstanding the provisions of section 106(3), the owner of a
    particular copy or phonorecord lawfully made under this title, or
    any person authorized by such owner, is entitled, without the
    authority of the copyright owner, to sell or otherwise dispose
    of the possession of that copy or phonorecord.

    But it goes on to state exceptions to this rule (primarily for the
    rental of phonorecords and software) and exceptions to these exceptions,
    not part of the original Copyright Act of 1976.

    But if one has permission to make lawful copies, one does not need any
    additional permission to distribute those copies to the public.

    The Copyright Office has noted an interesting potential quirk in the
    way this provision is worded. The test is whether the copy was
    "lawfully MADE" indicating that we look only to the time of the
    creation of a copy to determine whether this provision applies. The
    Supreme Court said in the Sony Betamax decision that copies of TV
    programs made for purposes of time-shifting were lawfully made because
    they were a fair use. Can those copies then be sold under the rule
    of Section 109?

    Note that the GPL does not acknowledge Section 109 when it states
    "However, nothing else grants you permission to modify or distribute
    the Program or its derivative works." It also ignores Section 117
    when, which gives "the owner of a copy of a computer program" the
    right to "make or authorize the making of another copy OR ADAPTATION
    of that computer program" if it is "an essential step in the
    utilization of the computer program in conjunction with a machine".

    As for Eben Moglen's assertion that "Licenses are not contracts" in
    http://www.gnu.org/philosophy/enforcing-gpl.html (previously cited),
    he offers little justification for the statement:
    the work's user is obliged to remain within the bounds of the
    license not because she voluntarily promised, but because she
    doesn't have any right to act at all except as the license permits.

    In light of Sections 109 and 117 (and possibly other exceptions),
    that statement is wrong with respect to United States copyright law.
    Just look at the wording of Section 109 -- "is entitled, WITHOUT THE
    AUTHORITY OF THE COPYRIGHT OWNER".
    ------

    and

    ------
    >"Licenses are not contracts: the work's user is obliged to remain
    >within the bounds of the license not because she voluntarily promised,
    >but because she doesn't have any right to act at all except as the
    >license permits." [quoting Eben Moglen]


    That might be true IF "she doesn't have any right to act at all except
    as the license permits." But as I have pointed out here and in my
    comments to the FSF regarding the new GPLv3, that is not the case.
    United States copyright law provides a number of exceptions to the
    exclusive rights of the copyright owner, including "first sale" as
    covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner
    of a copy of a computer to reproduce or adapt it if necessary to use
    it.

    The convenient redefinition of things in the GPL reminds me of a
    quote from Abraham Lincoln:
    How many legs does a dog have if you call the tail a leg?
    Four. Calling a tail a leg doesn't make it a leg.
    ------

    regards,
    alexander.

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