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IP lawyer here :) "If so, why can't an author make this part of the license?" So let's separate out two questions implicit here: Can you make this part of a

IP lawyer here :) "If so, why can't an author make this part of the license?" So let's separate out two questions implicit here: Can you make this part of a license? Would you win if you sued someone for violating it? The answer to the first is clearly yes, you can license it however you want :-). However, like most IP, in basically all countries there are limitations on how you are allowed to license things, to ensure the original goals of copyright are respected. Those limitations are usually presented as defenses. Van gave two examples of defenses. There are others. For example, patent misuse is a defense to patent infringement. Here's a concrete example of patent misuse that may be easier to understand than copyright misuse: You sell a thing that infringes my patent. In order for you to avoid infringing my patent, I force you to pay royalties for 10 years (Rather than a smaller length of time). But wait, the patent expires in 5 years! Can I enforce this? No. It's patent misuse. You cannot use your currently valid patent to force someone to pay royalties past the validity period of your patent. Another example: You have a product X that infringes my patent. I use my patent on X force you into an agreement to pay royalties on a product Y that doesn't infringe my patent. Can i enforce this? No. You shouldn't be able to use the patent on X to force me to pay royalties on something that doesn't use your patent. To bring it back to Van's examples, the copyright misuse is similar to the patent misuse i just gave you. You can't leverage your copyright on X to force me to do something with an unrelated thing. The GPL and AGPL are very careful about this. The AGPL applies to modified versions (which are derivative works) and only extends to pieces that are derivative works. The GPL is the same - only the derivative works are touched. That is within the copyright rights of the thing that was AGPL/GPL'd. How do you know it's unrelated to a given copyright? If X could not claim any copyright rights over it, it's unrelated. This usually comes down to whether it's a derivative work not because the other rights are not very broad in coverage. Here, the license is taking X, and saying "You must do something with unrelated thing Y, which is clearly not within the scope of copyright of X". So I am trying to use my copyright right in X to force you to do it. Note: No lawyer believes there is any reasonable argument that completely and totally independent piece of software X that does say, monitoring, is a derivative work. So that's a good start on copyright misuse :) (The other prong is about whether it restricts competition, which they already admit is their goal here)

nebulous1 8y ago
Let's hypothetically say that a court agrees that this is copyright misuse. Where would that put existing MongoDB released under the SSPL? Surely not public domain, so where?
- DannyBee 8y ago
  Depends on how well written/what court decides to do. I'm going to short circuit a lot of nuanced case law and differences between jurisdictions/courts here to give a clear answer: Usually these things are written so the clauses are severable. The court would then most of the time just remove the invalid pieces and leave the rest intact. If it is not severable, the contract stands or falls as a whole. If it falls, nobody is a valid user (though surely would be given time to stop or for mongo to fix it). Why? The default state of copyright is that only the owner has the rights. If you invalidate the contract/license granting you non-exclusive permission to those rights, you no longer have that permission at all. So you have no right to be using it. note: Any such court decision would only apply to the relevant court jurisdiction (IE if it was a district court decision, it would only apply to the parties) It would just be persuasive evidence to other courts.
  - VanL 8y ago
    Interesting thing about misuse, is that it prevents the enforcement of the copyright against even non-parties until the misuse has been dealt with. Practically, that is probably dealt with via a blog post and a retreat to the AGPL, but still.
    - DannyBee 8y ago
      "Interesting thing about misuse, is that it prevents the enforcement of the copyright against even non-parties until the misuse has been dealt with." Interesting. I've never delved that far into misuse but that makes sense. Is that piece a US specific thing or common in others? As you say it would not have too much practical effect since it's curable trivially. You'd get a few hours of unrestricted mongo use, maybe, but I bet the official order would post-date the blog post fixing it :)

nebulous1 8y ago

Let's hypothetically say that a court agrees that this is copyright misuse. Where would that put existing MongoDB released under the SSPL? Surely not public domain, so where?

DannyBee 8y ago
Depends on how well written/what court decides to do. I'm going to short circuit a lot of nuanced case law and differences between jurisdictions/courts here to give a clear answer: Usually these things are written so the clauses are severable. The court would then most of the time just remove the invalid pieces and leave the rest intact. If it is not severable, the contract stands or falls as a whole. If it falls, nobody is a valid user (though surely would be given time to stop or for mongo to fix it). Why? The default state of copyright is that only the owner has the rights. If you invalidate the contract/license granting you non-exclusive permission to those rights, you no longer have that permission at all. So you have no right to be using it. note: Any such court decision would only apply to the relevant court jurisdiction (IE if it was a district court decision, it would only apply to the parties) It would just be persuasive evidence to other courts.
- VanL 8y ago
  Interesting thing about misuse, is that it prevents the enforcement of the copyright against even non-parties until the misuse has been dealt with. Practically, that is probably dealt with via a blog post and a retreat to the AGPL, but still.
  - DannyBee 8y ago
    "Interesting thing about misuse, is that it prevents the enforcement of the copyright against even non-parties until the misuse has been dealt with." Interesting. I've never delved that far into misuse but that makes sense. Is that piece a US specific thing or common in others? As you say it would not have too much practical effect since it's curable trivially. You'd get a few hours of unrestricted mongo use, maybe, but I bet the official order would post-date the blog post fixing it :)