Open Source Licenses Are Not All the Same
Subject:   Open Licenses
Date:   2004-11-19 04:54:42
From:   Gumout
FOSS is slowly progressing toward licensing oblivion in
the United States. Open source licenses that attempt to
keep the source code open to the general public for
modification and derivative distribution are preempted
by U.S. copyright law.

A "preexisting" original author using an open source
"standard form" license is attempting to use his lawful
monopoly in authorizing derivative works of his
"preexisting" original work to control the exclusive
rights granted to all subsequent offerees' derivative
modifications to that "preexisting" work. The Copyright
Act states:

Section 103. Subject matter of copyright:
Compilations and derivative works.
(b) The copyright in a compilation or derivative work
extends only to the material contributed by the author
of such work, as distinguished from the preexisting
material employed in the work, and does not imply any
exclusive right in the preexisting material. THE

The Fourth Circuit Court of Appeals has ruled:
"The grant to the author of the special privilege of a
copyright carries out a public policy adopted by the
... United States Constitution, Art. I, 8, cl. 8, 17
U.S.C. 102. But the public policy which includes
original works within the granted monopoly excludes
from it all that is not embraced in the original
expression. It equally forbids the use of the copyright
to secure an exclusive right or limited monopoly not
granted by the Copyright Office and which is contrary
to public policy to grant." -- Lasercomb America Inc.
v. Reynolds 911 F.2d 970 (4th Cir. 1990);

The offeree who accepts a non-negotiable open source
license offer must not just grant a waiver of rights to
the offeror but must also offer a waiver to all third
parties of his granted copyright monopoly -- the
offeree's "rights against the world" -- rights granted
by the Copyright Act. It's one thing to waive a legal
right in privity but an entirely different thing to
waive a right against the general public.

All federal circuits now recognize "misuse of
copyright" as a valid defense to a copyright breach of
contract or infringement action.

"The doctrine of misuse 'prevents copyright holders
from leveraging their limited monopoly to allow them
control of areas outside the monopoly.' A&M Records,
Inc. v. Napster, Inc., 239 F.3d 1004, 1026-27 (9th Cir.
F.3d 640 (7th Cir. 2003)

A generic adhesion contract is required to be offered
to the general public (all third parties) by an
accepting licensee as a term of the license... this is
nothing more than an attempt to regulate another's
"right against the world"... rights excluded by statute
from the preexisting licensor's original work.

It is the offer to the general public that violates
public policy. The Seventh Circuit Court of Appeals in
ProCd v. Zeitenburg, 86 F.3d 1447, stated:

"A copyright is a right against the world. Contracts,
by contrast, generally affect only their parties;
strangers may do as they please, so contracts do not
create “exclusive rights.” Someone who found a copy of
SelectPhoneTM on the street would not be affected by
the shrinkwrap license – though the federal copyright
laws of their own force would limit the finder’s
ability to copy or transmit the application program...
But whether a particular license is generous or
restrictive, a simple two-party contract is not
“equivalent to any of the exclusive rights within the
general scope of copyright” and therefore may be

Recursive multi-party contracts are not simple
two-party contracts. Someone on the street finding a
copy of a program licensed under the Common Public
License would be affected by its license offer. It
invites any member of the general public to join and be
bound by the license.

This "copyright misuse" violates the will of Congress
as expressed by section 301(a) of the Copyright Act.
Congress' intent was that general copyright law be a
single uniform set of federal statutes. Non-negotiable
licenses to regulate copyrights that effect the general
public -- "rights against the world" -- may not be
created by contract law. Congress expressed its

"By substituting a single Federal system for the
present anachronistic, uncertain, impractical, and
highly complicated dual system, the bill would greatly
improve the operation of the copyright law and would be
much more effective in carrying out the basic
constitutional aims of uniformity and the promotion of
writing and scholarship." -- H.R. Rep. No. 94-1476

The federal courts will *never* enforce these canonical
form licenses whose primary purpose conflicts with
Congress' express wishes concerning public policy.

Flaming the public forums or name calling of critics
(the typical response from open source advocates) will
not change the jurists' minds. Stare decisis, "stand by
that which is decided", prevails in the real legal

Daniel Wallace

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