On Tue, Jun 27, 2017 at 7:00 PM, Rick Moen <rick@???> wrote:
>
>
> Well, it's interesting. I notice you just summarily declare that the
> patchsets cannot be fair use, without even mentioning the applicable
> four-factor conceptual test framework -- your right, of course, if you
> don't care to get into messy details. But that's something an alert
> reader will pick up on, and immediately wonder about.

I did offer to discuss the case with companies and their counsel,
under NDA, without charge. In addition, I just added to the article
parenthetically that I am willing to discuss why fair-use does not
apply, but would not complicate that article with it.

Essentially, I don't think your addition to work under DJB's silly
non-license was transformative fair use, I think the work was
all-rights-reserved under the Bern Copyright Convention of 1981 or so,
and you never even had the right to run his code.

You should have avoided the work until DJB got off his drug trip about
the lack of necessity to have any license at all nor even to dedicate
the work to the public domain. Which is why I was working on Postfix
after being a Qmail beta tester before DJB announced his plan.

> The key bit is your sentence 'GPL version 2 section 6 explicitly
> prohibits the addition of terms such as this redistribution
> prohibition', which does not accord with my own understanding of that
> clause or of pragmatic copyright caselaw -- as I've said.


OK. I just read it again:

6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions. You may not impose any further restrictions
on the recipients' exercise of the rights granted herein.

And your theory of this not applying is?

> One day, a customer who happens to have been one of, let's
> say, three customers who've been redistributing those works receives a
> letter saying that in accordance with contract terms that permit either
> party to do so, the commercial firm is ending the business relationship
> prospectively. No allegation is made that the one action was in
> response to the other.

That customer can, if they wish, go to court and claim that they were
terminated unlawfully from their own contract because they exercised
their rights under another contract to which _both parties were
joined,_ and which did not permit the addition of any terms whatsoever
regarding the right exercised, including their termination. They can
depose everybody in the company, and with any luck someone will
corroborate the reason for their termination.

> Customer does not have a cause of action under copyright,

It doesn't have to be under copyright at all.