Copyleft and databases in irish law PDF

Preview

Summary

databases and intellectual property in ireland with a focus on copyleft and copyright....

Description

Topic 3: Copyleft and creative commons: Problems with copyright coverage of computer programs: 1.

Expressive or functional – no consensus as to which it is.

2.

Network externalities – the first market obtains a monopoly which effectively stifles competition, due to network externalities in the software market. Also switching costs.

3.

Term of coverage – we should be allowed to access source code of operating systems that have expired. a.

Richard Stallman and the GNU GPL – copyleft

4.

Software is a collaborative venture

5.

No compensation for privatization

Distinguishing free/open source and proprietary software: Proprietary software is software protected by copyright law and also covered by a licence. 

Software was once a free resource or a type of digital commons which later became the object of regulation and privatization.



Licensing terms are now very restrictive.

Free software: Free as in speech, not as in beer: 

What differs between proprietary software and free software is the licensing terms.



Free software comes from the Free Software Foundation set up by Richard Stallman in 1985. o



Free software foundation approves certain licenses for use with free software. o



Comes with a lot of freedoms but can be sold.

GNU GPL or BSD licence, used for the distribution of UNIX

‘Free’ was damaging, changed to ‘open source’

Open source cozying up to the business community: 

Open Source initiative – approves licenses.

Libre Software: the Ms. Factor: 1990’s EU became interested in the use of free software: came up with ‘libre’ software. BSD license commentary: This licence is considered to be the most liberal free/open source there is. 

Opposite side of the spectrum compared to GNU GPL.



Only requirement: preserve copyright notice.



Disadvantage: proprietary firms can profit from its use without giving anything back.

GNU GPL: the advent of copyleft: While copyright’s claim is to reserve all rights, copyleft claims to reverse them. Commentary on the GNU GPL license: 

Whoever benefits also contributed – redistribute works using the same licence.



Berne convention has removed necessity for formalities in relation to copyrighted works: no requirement to publish one’s work in order to benefit from the copyright protection.



If you do not register it, it is still copyrighted. o

Life plus 50 years for copyrighted works.

in common law countries copyright is seen as an economic right whereas in civil law countries, role of the author is much more important. 

Thus, confusion over which laws and rights apply. o

Partial remedy, free software foundation encourages programmers to assign their copyright to the foundation so that there is a single owner of the software.

Jurisdiction: 

Jurisdictional issues with regards litigation are bound to arise.

Enforcement: Several cases where the GNU GPL and another free/open source licence, the Artistic License has been litigated: 

Progress Software – licence was valid even if there was no valuable consideration.



Montavista Software – again validity of license was not questioned.



GNU GPL version 2 first hearing in Welte. o

Sitecome failed to mention its software was licensed under the GPL and source code was not provided.

o

Found to violate the GPL under section 2(b) and section 3.



Welte v Fortinet: enforceability of the GNU GPL v2 was reaffirmed.



Welte v D-link: cease and desist was granted for non-compliance with the licence.



Wallace v International Business Machines Corp: court held that antitrust law was not violated by the GNU GPL.



Welte v Skype: the court held that the right holder’s will is paramount and that if he wishes to licence in a particular way then, so be it.



Jacobsen v Katzer COA upheld the Artistic Licence. o

DC held that licence is a non-exclusive public licence and there were no grounds for a copyright infringement claim, given such license imply that licensees will not be liable to infringement suits.

o

Claim under breach of contract was however admissible. 

Appealed: terms represented conditions not covenants



Lack of money changing hands does not mean there is no economic consideration.



Also held the open source requirement of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.

o

These kinds of license restriction will be rendered meaningless absent the ability to enforce through injunctive relief.



Artifex Software v Hancom (2017): o

Ghost script interprets files written in PDF for display 

Artifex is the exclusive licensor for this software.



They use dual licensing: one you must pay a fee for and one which is open source (GPL GNU 2). S.9 In this license you agree to its terms by modifying it or propagating a covered work.



S.6: requires licensors to distribute or offer to provide copies of source code for all software in the product that is covered by the licence.

o

Hancom sold software which used Ghost script and did not offer source code and thus does not comply with GPL.

First, they argue that because it was free, there could not be any damages: 

The jury can use the value of the commercial license as a basis for any damage’s determination



Unjust enrichment argument: restitution for breach of contract for damages, the license was not free in the sense that there was no consideration owed under the agreement. o

Jacobsen: “the lack of money hanging hands in open source licensing should not be presumed to mean that there is no economic consideration”

o

Breach of contract claim is possible, and that it is possible to quantify damage caused in monetary damages. Even if this does involve comparing the price of a commercial licence.

Furthermore: The termination of the license only terminates the licensee’s rights to continue to propagate or modify ghost script and that the GPL will persist after termination. 

The claim that an automatic termination cuts off recovery for subsequent breaches is misplaced. o

The agreement does not end on the licensee’s breach; rather the licensee’s rights automatically terminate.

Geniatech/McHardy (2017) Each person contributes to a kernel within a software. If someone is infringing, anyone may bring an action. 

Copyright troll brings actions on basis of a small piece done by him within the kernel.



Purchased Geniatech Europe, found it infringed the GNU GPL v2 – no source code had been provided.



Geniatech admitted some incompliance in the past but was not willing to accept an overly wide claim in the preliminary injunction against his company. o

He had filed for the injunction in Germany (district court of cologne) and here they grant a partial injunction immediately until the oral hearing. 

Appealed and court held that there is no co-authorship in the Linux Kernel, there is no “grand joint” plan.



Being listed as “head of the net filter core team” or a “subsystem maintainer” does not mean that one is contributing to copyrightable works. 

McHardy’s claim that he co-authored is not accurate, he is only an editing author.



His right to cease and desist only applies to portions he has edited.

Informal enforcement: They will contact you first and if you refuse to comply, they will become less friendly as time goes on such as shaming, blacklisting and publicly outing you. 

May not be so easy to operate in the future.

Rewrite in each Jurisdiction Another potential remedy would be to rewrite the GNU GPL and to harmonize it with the law of every country. 

Brazil translated the GNU GPL into Portuguese. o

On a contractual level, third parties are not bound, and that is why it is important to have a single standard copyright to rely on.

Theoretical Approach The Law Merchant – perhaps informal regulations may emerge. Eldridge v Ashcroft (2003) Concerned with the copyright extension act (CTEA) 1998 

Lengthened duration of copyright to a life plus 70 years after the authors death.



This act enlarged the terms of all existing copyrights

Majority believed that authors of existing works benefit from extensions to copyright protections because authors who have published shortly before a copyright extension should not be at a disadvantage. 

Brought the law in line with EU law.

Eldred Claim He posted books, the CTEA brought books that were in the public domain back under copyright protection. 

He argued that congress powers to do this are curtailed by the ‘limited times’ provision of the constitution and that such an extension is not permissible. o

Claim that extension override the copyright requirements of originality failed as the case Feist makes no reference to this.

o

Claimed copyright extensions only add value to existing works rather than stimulating the creation of new ones is rejected. 

o

Congress decides, not the courts how to best pursue the copyright clauses objectives.

Claim that copyright requires a balance 

Courts reject that the copyright extension has effectively created a perpetual copyright.

Dissenting Judgements: Justice Stevens: congress cannot extend existing federal protections retroactively 

The reason for increasing the inducement to create something new simply does not apply to an already created work.



Also claims that CTEA had made copyright into a practically perpetual right. o



Rather than promote the progress of science it has the opposite effect.

Does not create any economic incentive

Thomas Jefferson: “he who receives an idea from me, receives instruction himself without lessening mine…that ideas should freely spread from one to another over the globe, for moral and mutual instruction of man…. seems to have been peculiarly, and benevolently designed by nature. Creative commons: Non-profit, Civil Society organization which aims to get authors of works to voluntarily relinquish their copyrights. Some criticisms: Same criticisms as the GNU GPL – that they were all originally written in the US. 

Lawrence Lessig later established international commons in order to harmonize the licenses in the legal systems of various countries around the world.



Other criticism – does not have a set of values. o

Inordinately complex, often forced people to get lawyers for advice.

Adam Curry v Audax: Published photos on Flicker under a creative commons license – BY – NC – SA. 

Dutch tabloid published them without observing the license. o



Injunction was granted against future use.

First case were creative commons licenses were recognized.

SGAE v Fernandez Sued for playing music 

All music was from a creative commons



The creative commons license could only be applied by the artist.

Lichodmapwa Belgian band published Songs under a creative commons license BY – NC – ND 

A Theatre used a small part of the song and was sued for violating three conditions of the creative commons licence.



Won: awarded 1,500 for each violation.

Gerlach v DVU Picture of a German politician uploaded under BY – SA. 

Uploaded by a German political party.



He sent a takedown notice that was ignored. o

Proceeded to get a preliminary injunction which was successful.

Other Legislative Initiatives Lessig hopes to introduce the Public Domain Enhancement Act – aim is to allow abandoned copyrighted works to enter the public domain after 50 years....