I'm not sure about this legal theory, but then, IACNAL (C is for Certainly!).
Someone who does know will doubtless put me straight. Put simply, I understand
that copyright reserves certain rights to authors. A copyright licence
grants some or all of those rights to licensees. In some cases, (I'm
thinking particularly of the GPL), the grant is made conditional on
certain behaviour with respect to the protected material.
The
$7.4E9 question (ha!) here seems to be, can the licence enforce certain
behaviour beyond limitations on copying, in this case, implementing the
specification? That sounds like the realm of contract law, to me. In which case
it wouldn't matter what the licence said, it wouldn't be enforceable. [1]
Judge Alsup gets it. I don't believe that he's going to enlarge the realm
of copyright protection in this way. I'm going to put money on there being an
appeal, though, whichever way it goes
[1] I'm aware that some
thinkers have tried to maintain that the GPL is contractual, and thus
uneforceable, by going along similar lines. The reasons they are wrong are too
voluminous for this footnote to contain :-) --- (c) assigned to
PJ
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