OK, I don't see much reason to ask Google to help with *that.*

There hasn't been a litigated case, that I know of, of transformative fair
use as applied to Free Software. The closest so far is *Oracle v. Google, *in
which Oracle claimed that Google's use could not be fair use because
it was *not
*transformative. I could, if it were litigated, produce a good expert
testimony that grsecurity does fail the fair use test because it causes
market damage to Linux and the GPL's purpose of accumulating additional
Free Software as modifications are produced. The fact that the market
damage is a non-monetary one was already successfully litigated in the
appeal of *Jacobsen v. Katzer,* although Victoria Hall did not successfully
state Jacobsen's actual damages in the lower court case (she pleaded
something like "by the infringement, the plaintiff was damaged").

    Thanks

    Bruce

On Tue, Jun 27, 2017 at 11:58 AM, Rick Moen <rick@???> wrote:

> Quoting Bruce Perens (bruce@???):
>
> > I've been getting credible reports that grsecurity.net is infringing
> the
> > kernel by preventing customers from redistributing the GPL code for their
> > patch.
>
> They would be infringing the copyright on the Linux kernel if it were
> establishable as a judiciable fact that their patchsets fail the fair
> use tests as derivative works -- but that is not clearly the case.
> (At least in US law, fair use is an affirmative defence, so you find out
> whether it's applicable to a particular case only when it's decided.)
>
> Back when qmail, djbdns, etc. were still proprietary code, I heard legal
> commentary on the wide distribution of patchsets, and recall hearing
> lawyerly opinion that such patchsets fairly easily satisfy the test of
> being commentary on the copyrighted work
> (http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/) as a
> 'transformative' purpose. So, for example the consensus was that Russ
> Nelson & friends' 'netqmail' patchset did not violate DJB's copyright in
> qmail.
>
> > What is it we want Google to do? They usually listen when I ask...
>
> Brad Spengler seemeed to want Google to cease using old grsecurity
> releases on old kernel codebases (for, I think, Chrome OS) and still
> letting the world think that the results reflected on the quality of
> grsecurity. Their complaint was that this, in their view, damaged their
> brand. (A more cynical take would be that they just wanted to get
> paid.)
>
> This much water having gone over the dam, I personally doubt asking
> Google to do/not do something at this late date would mend things.
>
>
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