ACT - Protecting Small Business Innovation

A discussion about Apple's choice of licenses used in open-sourcing Grand Central Dispatch

Caution: because I am talking about code libraries, this discussion will be technical - a combination of the worst of geek and lawyer-speak.  Sorry.

I had a discussion with a colleague yesterday about Apple’s choice of licenses used for open-sourcing of its Grand Central Dispatch (GCD) concurrency framework, which is a piece of software Apple credits with driving great Mac OS X performance improvements.  GCD comprises both a library component, called “libdispatch”, licensed under Apache 2.0, and a C language extension, called “blocks”, a runtime distributed under the LLVM license, a BSD derivative (someone has already begun porting blocks to iPhone and older versions of OS X, distributed under the MIT license). 

Where I had speculated that Apple had chosen the license mix that it had to facilitate incorporation into GCC (and avoid the problems Apple experienced with developing Objective C as a series of libraries and a front-end that was a derivative of gpl-licensed GCC code), it looks like in reality Apple is trying to wean itself from GCC entirely, by its support for, and use of LLVM (a compiler runtime that is an alternative to GCC’s runtime) and a compiler front end called clang.  The LLVM runtime still supports the goal of portability because of its availability on linux (some distributions use a GCC-llvm compilation method for the kernel).  David Chisnall, in a thoughtful article, claims that Apple's transition to LLVM (away from GCC) presents a perfect example of the principle that "you don't necessarily get good results from forcing people to do things."

Apple’s support for LLVM may not be entirely due to the licensing issue, because LLVM is considered to have significant performance improvements, and a reason for Snow Leopard’s improved performance.  The performance improvement, however, can be due to Apple’s development support for LLVM, which may be due to the licensing issue.  So we may have a chicken and egg issue.  I do think that Apple started supporting LLVM before it got really good (and most likely in order to be free from GCC), and then the performance improvements followed (with help from a large open-source community that arose to support the project).   John Siracusa at ars technica says:  “By committing to a Clang/LLVM-powered future, Apple has finally taken complete control of its development platform.” 

So what do the respective licenses  and distribution methods get Apple?

GCD and libdispatch – Apache 2.0.  As we have discussed, one distinguishing feature of Apache 2.0 is that it provides for automatic license termination if the licensee instigates patent litigation regarding the work (in clause 3).  This provides Apple with control over its own patents regarding the work, and is similar to how Apple released Mini DisplayPort, a standard that has been incorporated into VESA's DisplayPort standard.   Apache 2.0 also allows for “viral” licensing, although it is not “copyleft” per se; in clause 4, redistribution allows either source and/or code redistribution and derivatives as long as the distribution is also licensed under Apache 2.0.  For that reason, the FSF considers Apache 2.0 licensed code to be “one-way” compatible with GPLv3, meaning that a GPLv3 project can include Apache 2.0 code, but not the other way around.  

The Apache 2.0  license is not compatible with GPL2, because of the automatic patent license termination, but that does not automatically mean that the linux kernel project cannot use the new libdispatch library.  Ryan Paul at ars technica believes that the license incompatibility does prevent adoption by linux.  Remember that the linux kernel today will allow linkage to fully proprietary driver libraries, let alone alternatively licensed open-sourced libraries.  See http://blogs.techrepublic.com.com/opensource/?p=276&tag=rbxccnbtr1 for a discussion of the debate about allowing linkage to proprietary drivers.  So Apple can get adoption or use of libdispatch by linux, if that is its goal. 

Apple is promoting use of GCD as a standard by also releasing OpenCL, a standard it has been developing with nVidia, incorporating a set of libraries to take OpenGL a step further and provide parallel processing on graphics cards and core processors.  OpenCL has been set up under the “stewardship” of the Khronos group that controls OpenGL, but John Siracusa says to "make no mistake, OpenCL is Apple's baby."  OpenCL builds on GCD, (and LLVM, but does not incorporate blocks) and provides a higher level programming API, just as OpenGL did, as well as language extensions.   Just as OpenGL has been implemented on linux, there is no reason to believe that OpenCL will not also be implemented on linux, by nVidia, if no one else.

Blocks – released under LLVM license (a BSD derivative) and as part of LLVM project.  It may have just made sense to release blocks as part of the existing LLVM project and under the license already adopted for that project.   This license is compatible with the GPL Because it is a BSD derivative, it can be used in GPL projects; the llvm-gcc compiler front end is released under GPLv2, (no update since GPLv3), but there is a GCC link time optimizer released under GPLv3. .

Because blocks are a c language extension, and not just a library feature, there is extra benefit to Apple by encouraging adoption (language extensions that developers do not adopt are useless).  Of course, by inclusion in Apple development environments, there will be some level of adoption, but there are network effects in having more developers use this construct.  Ars technica explains that “It's Apple intention to submit blocks as an official extension to one or more of the C-based languages, though it's not yet clear which standards bodies are receptive to the proposal,” (further noting that blocks are supported by all of Apple’s compilers (including Apple’s GCC distribution).

Apple has many very smart IP lawyers guiding its choice in open source licenses; the fact that neither Grand Central Dispatch nor Blocks were released under the GPL is not an accident.  Ultimately, I don't agree that Apple's choice of a non-GPL license will prevent its adoption by anyone other than GPL evangelists, and I believe that Apple would not have open-sourced this work if its only alternative was to use the GPL.  I think Apple's example shows how careful companies need to be in open sourcing code, especially if such code is part of a larger whole.

Be Careful What You Wish For: How the Jacobsen v. Katzer Decision Could Hurt the Free Software Movement

Last week, the U.S. Court of Appeals for the Federal Circuit, in Jacobsen v. Katzer, issued a very important decision in a case of first impression relating to the enforcement of software licenses.   In particular, it was the first federal appellate court decision to clarify whether failure to follow obligations imposed by an open-source license results in copyright infringement or breach of contract.  The distinction is important, as it controls the remedies available for such a failure, and can impact the question of whether lawsuits can be filed in state or federal court.  As Larry Lessig says, “trust me, this is huge.”  This may be true in ways that the free software movement did not foresee – and ways that the movement may very well regret. 

In this decision, called a “major victory for open source,” the court held that failure to abide by provisions requiring attribution in the Artistic License  (which wins the award for best software license name) will result in copyright infringement, because the license provisions were labeled and drafted as “conditions.” This decision is considered a victory  for both open source software licenses and the Creative Commons  licenses for literary and musical works, because it clears up questions about the enforceability of their licenses under copyright law. However, in strengthening copyright holders’ ability to make license provisions a condition of the copyright license, the free software movement may have won the battle, but lost the war.

As Braden Cox of ACT explained, because the “rationale of the decision is not limited to only open source,” this decision is a boon for all copyright owners who impose conditions on the license to their products. This could deprive the free software movement of one of its most important sources of new products: reverse engineering popular proprietary products.  Under Jacobsen, conditions, including a prohibition against reverse engineering, MAY now be enforceable under copyright.

This practice has already been under pressure in light of decisions such as Davidson & Assocs. v. Jung, 422 F.3d 630, 639 (8th Cir. 2005), which held that license provisions prohibiting reverse engineering (in that case, in relation to the Blizzard gaming system) are not preempted by copyright law.

While there are examples of important free software that did not originate by reverse engineering proprietary software (e.g., the Apache web server,  the Firefox browser ), many of the most important free software projects began by reverse engineering proprietary software systems.  For example, Richard Stallman and the GNU Project reverse engineered  Unix tools to create the “unix-like” GNU system which is a major component of what Stallman calls "the GNU/Linux operating system."  Stallman considered installation and use of Unix, a proprietary operating system, a “justifiable evil,” “applying the same reasoning that leads to the conclusion that violence in self defense is justified,” but he did not apparently apply the same rigorous analysis to his decision to copy Unix system tools rather than create his own system.

Another example of an important free software program that could not have been created without reverse engineering is the Samba project, which is a set of services that allow a non-Windows server “host to interact with a Microsoft Windows client or server as if it is a Windows file and print server.”   Samba was created by using the “french café” method of reverse engineering: having Microsoft clients and servers communicate with each other and using a “network sniffer” to discover the details of the network communications between them, akin to “sitting in a French Café and just listening to the conversations” in order to learn French.   

Yet another example of an important open source program that relied on reverse engineering is the Open Office suite of productivity applications, including a word processor and spreadsheet, which both reverse engineered the Microsoft Office data formats and “emulate[d] its look and feel where suitable.”   

The ability to reverse engineer software has been considered subject to the “fair use” defense under U.S. copyright law, 17 U.S.C. § 107,  including by the Ninth Circuit in Sega Enterprises, LTD v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).   Many software providers consequently have made it a condition of their license agreements that the licensee not engage in reverse engineering, as “private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act.”  Bowers v. Baystate Techs., Inc., 320 F.3d 1317, 1325-26 (Fed. Cir. 2003), quoted in  Davidson, 422 F.3d at 639.  This is where the Jacobsen decision could impact reverse engineering practices. 

If a software license is “conditioned” on not reverse engineering the software, then after Jacobsen, breach of such a license “condition” could result in a finding of copyright infringement, rather than simply a breach of the license contract.  It’s not the reverse engineering per se that would constitute the copyright infringement, just as it’s not the lack of attribution that constituted copyright infringement in the Jacobsen case, but rather the unlicensed exercise of one of the exclusive rights granted under copyright law (i.e., the right to make copies or derivative works, which takes place during the process of reverse engineering).  And just like with the attribution provision in the Artistic License, as the Federal Circuit explained, “these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.” 

This is the result that Eben Moglen has long argued for, stating “[l]icenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits.”   But if this result prevents development of new free software projects that rely on reverse engineering popular commercial programs, then it could deprive the free software movement of one of its most significant sources of new projects. 

Make no mistake – this decision strengthens the hand of copyright holders, a large number of which are the types of commercial organizations that insist on being paid for their hard work when their products are successful in the marketplace.  By pressing for a short-term victory, the free software movement may have sown the seeds of its own defeat.

This is not legal advice

Bust Open the Cristal, ACT Wins Award from Some Angry Brit with a Blog!

Finally catching up on my blog clippings after a week of travel, and I found out that ACT has apparently won the inaugural "Scum of the Day" award from some angry British guy with a blog!  I've ordered a case of Cristal for our DC and our Brussels offices in celebration. So try not to call us on Tuesday...the ringing will hurt my head.

Anyway, it seems that the prize is in honor of all our work to identify some serious problems with the GPLv3 during the drafting stages.  What is truly amazing about the accomplishment is the competition we beat out!  There were so many who did so much to highlight the dangers of the new license.  Other "libelous" critics of the GPLv3 read like the a Who's Who list of the World's biggest Linux haters!

• The Notorious DLC (Debian Linux Community) did some really ground breaking work FUDDING the GPLv3 on behalf of their corporate masters of Microsoft.  Wish that we too had noted that the GPLv3 fails the "Dissident Test" and could be used by repressive regimes as “a weapon to be used against people holding unpopular or illegal views.”
• The Linux-Hating Members of the Linux Kernel Development Team which made some crazy claims about the GPLv3's "potential to inflict massive collateral damage upon our entire ecosystem and jeopardise the very utility and survival of Open Source."  They also noted the same concerns WE had about the patent provision.  Obviously, these blatant lies were a favor to Bill Gates after he loaned them his Lake Washington home for a massive kegger and promised to open source Microsoft Bob.
• That Guy Who Hates Linux So Much He Put His Name On It.  I figured Linus Torvalds' refusal to move the Linux kernel to GPLv3 would have made him the frontrunner. But, after he called the Free Software Foundation and its acolytes a bunch of "controlling," "condescending," "hypocrites," that are full of "hot air," it seemed like a foregone conclusion...Linus did more than anyone else to raise concerns about the GPLv3 and the FSF'ers that were designing it. 

Yet, somehow little ol' us won the award... funny that.

If I were to hazard a guess why, perhaps it's because reminding the world that most of the open source community's leaders have criticized and/or rejected the GPLv3, would undermine Mr. Angry's entire version of reality:

"the oceans of FUD Microsoft has bought itself, including low-key payments to academics (never forget academic kickbacks), were at best able to slow down — but never to defeat — adoption of this evolutionary licence."

The reality is that Microsoft didn't need to do anything to FUD the GPLv3.  There were so many legitimate problems with the license that the Open Source community led the charge on the so-called "FUD" campaign. 

ACT engaged on GPLv3, because we believe that the development of the license was a turning point in the software industry.  After years of moves toward collaboration and mutual respect between open source and proprietary software companies leading to hybrid solutions, the GPLv3 was akin to the Bonfire of the Vanities.  It was an effort to purify the Open Source community back to its Free Software roots, a move that was destined to split the community... and, as you can see above, we were right.  In the end, the Free Software Foundation even made some of the changes that we pushed for including rewriting the DRM section and parts of the patent provisions.

In the end, though, we stand ready to accept our award with open arms.  Mr. Angry, just tell us where the awards ceremony will be and what the dress code is and we'll bring our own red carpet.  Just one question...does the award resemble a tin foil hat or is it more like a Faraday cage?

Revisiting License or Contract – A Recent Open Source Legal Decision Proves Our Point

Paul Krill of Infoworld recently reported on a recent US federal court ruling, which Mark Radcliffe, counsel for the Open Source Initiative,  fears “could derail enforcement of open-source licenses altogether” by foreclosing licensors’ ability to get an injunction against license violations.  (Quotation to article, not Mark Radcliffe).  In this ruling, Judge Jeffrey White analyzed the scope of an open source license (the Artistic License,  which wins the award for best name) and found that provisions requiring attribution were contractual terms rather than limitations on the scope of the copyright license.  As a result of this finding, Judge White denied the plaintiff’s motion for a preliminary injunction, raising the fear that courts could limit the remedy for violations of open-source licenses to uncertain money damages. 

Some people are working overtime to find the silver lining for the FSF.  While Krill quotes Eben Moglen as saying "[i]t seems to me a not very important ruling," ZDNet bloggers Dana Blankenhorn and Paula Rooney believe that this case will allow the FSF to seek money damages for "interfering in a business relationship."  (Who is interfering with whose relationship?   See Richard Wilder's white paper on Legal Risks.) 

Mark Radcliffe feels that “this decision is simply wrong.”   In particular, he believes that “[t]he use of the term ‘condition’ in the Artistic License should mean that the terms imposed are restrictions on the scope of the license.”  Radcliffe’s position is supported by Professor Raymond Nimmer (in the treatise Information Law § 11.153) and others.  I don’t agree.  By this reasoning, you and I can use the word “condition” to modify the scope of rights allowed under copyright law, regardless of the substance of the condition. 

I am going take this opportunity to try to simplify the position that Richard Wilder and I took in GPLv3 is a Contract and Why it Matters.   In essence, we agree with Professor Nimmer  that whether a particular term is contractual depends on whether the term is intended to create an enforceable obligation.  Rather than focusing on certain “magic words” like “condition,” I would contend that there are three basic propositions that control:

1)    The scope of copyright is specified in statute; for example, the exclusive rights listed in 17 U.S.C. § 106.   A license is essentially a waiver of the right to sue someone for exercise of these rights.

2)    For breach of a license term to be considered copyright infringement, the breach must be the exercise of one of the exclusive rights that wasn’t allowed in the license.  For example, you may divide your licensable copyrights by field of use.  Thus, if you limit your license to use of your software in non-commercial settings, it’s use in a commercial setting would be copyright infringement.  The use exceeded the scope of the license.

3)    Any other provision is contractual and is ruled by the law of contracts - including that a contract can be formed only if there is an offer, acceptance, and consideration.

In the Jacobsen v. Katzer case,  the plaintiff contended that the defendants redistributed JMRI code without properly attributing it to the original authors, as the Artistic License requires.  For literary works (which include computer software) attribution is not one of the exclusive rights under US copyright law (although it is a right under the Berne Convention for the Protection of Literary and Artistic Works  - to which the US is a party).  Judge White correctly determined that “[t]he condition that the user insert a prominent notice of attribution does not limit the scope of the license” because the U.S. copyright statute doesn’t speak to the issue of attribution.

So how would this affect GPLv3?  Let’s take one provision in particular, the so-called “anti-Tivo” provision in section 6,  which requires anyone that distributes GPL’d code as part of a consumer product to include installation information and the ability to install modified versions of the code on the consumer product.  One could argue that the FSF has limited the scope of the license to prohibit distribution in consumer devices that don’t allow modification of device software, meaning that a breach would be copyright infringement.  I think the more logical reading is that the FSF has imposed an additional obligation on producers of consumer devices.  Failure to fulfill that obligation would be a breach of contract, not a copyright infringement. 

That doesn’t preclude preliminary injunctions in license enforcement actions if the copyright holder can prove irreparable harm along with the other requirements for a preliminary injunction.  What it means is that if the FSF hopes to bind parties  to the contractual terms of GPLv3, they are going to have to show that all of the prerequisites of contract formation have been followed, including offer, acceptance, and consideration.

Lies, Damn Lies, and Statistics

The c|net News Blog recently reported on a study performed by Palamida, an open-source risk management company, that claims GPLv3 adoption at 50% of all GPL projects.   As the blogger says: “That’s huge.”  Or rather, it would be if it were true.

According to Palamida, 382 projects have announced that they would switch to GPLv3 as of August 21, 2007.   That’s the number of projects that have announced, not necessarily the number of projects that have released code under a GPLv3 license.  For example, this number includes the Samba and SugarCRM projects, which have publicly announced that their next releases would be licensed under GPLv3 but have not yet released GPLv3-licensed code.  But even assuming that all announced projects will switch, c|net News and Palamida have resorted to some pretty tricky footwork to report that this relatively small number is a 50% conversion rate.

Basically, what they did was to count all the projects licensed under version 2 “or later” as having converted to GPLv3.  Furthermore they used unexplained estimates of “conversion rates” and “impact” to arrive at the “or later” figure in the first place.  No matter how you slice it, that is dishonest.

Palamida themselves wrote in a different post that “[b]y using the ‘or later’ phrase, the copyright holder is effectively leaving it up to the end user to decide which version of the license they want to use.”  This interpretation meshes with what the Free Software Foundation says (FSF), and the FSF also adds that even if the recipient of code licensed version 2 or later wants to switch to version 3, that user cannot bind the distributor of the code to the requirements of version 3.

What’s worse is that both Palamida and the c|net blogger know that what they reported is not true.  Just a month ago, Palamida reported that 116 projects had converted to GPLv3 and said: “Palamida estimates that the conversion represents less than 1% of GPL’d projects.” 

Frankly, having 382 converted and announced projects this soon after GPLv3 was released is more than respectable.  It should take a long time for projects to decide whether they want to switch – this is a serious decision that will impact everyone involved.  The FSF intended for GPLv3 to have a major impact on intellectual property policies, and project stake-holders should make sure they agree with the intended effects of this new license (if they can understand the effects, but that’s a different post).

What is not respectable, what is not serious, is reporting the 382 announced projects as a 50% conversion rate to GPLv3.  The free software community deserves better, and so do we.

Is Web2.0 a Parasite on Open Source?

There seems to be a growing sense among the Free Software community that Web2.0 companies are not living up to their end of the bargain.

Last month, Eben Moglen began with a relatively gentle attack on the Google for not giving enough back to the Free Software community that makes its $160+ billion market cap possible. Moglen argued that Google's image was at stake within the community. He left unspoken the threat that the Sword of Damocles (in the form of a GPLv4 with an integrated Affero provision) looms over their heads if the "Community" is angered.

Yesterday, Matt Asay took it to the next level when he wrote in his CNET blog that:

Web 2.0 companies are in the habit of taking from open-source software and giving back selectively, if at all. As such, they tend to build on the free (as in price) versions of MySQL and Linux …The Web 2.0 world feels (to me) like a parasite on open source, not a strong contributor to it.

I'm not sure I buy into the idea of Web2.0 or even Google being a "parasite" on Open Source. But, this will be an interesting storyline to watch. The Free Software community is a passionate bunch, to say the least. If they turn on the Web2.0 companies that rely on them most… the results can be ugly.

Just look at what happened to Tivo, a company that nearly everyone agrees was a perfect citizen of the Open Source community under GPLv2 rules.

Does the Free Software Foundation Have Brilliant PR People…or Stupid Ones?

I'm sure you are already aware, but today is a big day! REALLY BIG! 10 years in the making, the Free Software Foundation will finally release version 3 of the General Public License to the world. It is the Pride and Joy of Stallman and Moglen and the potential savior of the Free Software cause!

So, as a "PR guy" I find today's timing very interesting. Given the importance of this announcement, why would they bury it on the Friday before (for all intents and purposes) a holiday weekend? And isn't there something else kinda important going on today???

Oh yeah, and on the same day as the biggest news story to hit the tech industry in years. The day when every single tech reporter in the world is covering something else!!! A day where Steven Levy was nearly mugged for his iPhone on LIVE TV!! The day that will go down in history, not as the day Eben Moglen paved the way for Free Software glory in his final act as the FSF's counsel, but as the day that the proprietary iPhone revolutionized the mobile phone world.

Yet, I still think it is a Brilliant move by the Free Software Foundations' PR team. It's the equivalent of George Bush announcing he's pardoning Scooter Libby and Jack Abramoff on Christmas Day.

Microsoft Patents FUD Report: Who is Actually Slinging it?

My morning news review had me chuckling this morning.  Following Matt Asay's post on the InfoWorld Open Sources blog, I watched Eben Moglen's passionate attack on the Microsoft/Novell deal and his analysis of Microsoft's supposed FUD strategy.

In it, Moglen accuses Microsoft of going on a "Be Very Afraid" tour around the world designed to spread FUD about their patents and how they may affect Free Software.  I nearly spit out my coffee I was laughing so hard. 

Moglen is being COMPLETELY DISINGENUOUS and he knows it.  The reality is that Stallman, the Free Software Community, and anti-software patent advocates have been complicit in this supposed FUD campaign about Microsoft's Patents, and could it could be argued are actually LEADING it.

I readily admit that Microsoft has made cryptic and/or blunt comments in the past about its patents and how Linux and/or Free Software may be infringing on them.  I'll also admit that I don't know how solid Microsoft's case may be.  Many of the patents could be bogus, the infringement cases could be weak, etc., (I still think, however, that the chances are pretty good they have a case on more than one of their patents).  But, that isn't the point.

Not So Lonely Anymore

Following the release of GPLv3 draft 3, Bruce Perens and others seemed to focus on calling us names rather than responding our analysis and concerns about new license.  He was so vociferous in suggesting ACT was alone in our concerns, even we started wondering if he was right...

Thankfully, level of conviction does not seem to have a direct correlation with level of accuracy. In fact, there are others even in the Open Source community that share many of our concerns.   

Earlier this month, Allison Randal of O'Reilly Radar and Tim O'Reilly himself shared their concerns about the newest draft of the GPLv3.  Much of it sounded awfully similar, especially to Braden's V for Vendetta post.  As Allison Randal said:

My fifth objection is a rule of discrimination: I'm fine with establishing a set of principles and building a community around them. People who want to follow the principles belong in the community, and people who don't can find a different community to join. But when you start redefining the principles in order to keep out specific people, even though they followed your principles, that's discrimination (not to mention being a little too much like a game of Calvinball). There's no room for discrimination in free software, or in any movement promoting freedom.

Tim added that:

What bothers me here is the amount of attempted micromanagement of others that I see in this license draft.  For a license that's supposedly about software freedom, it's got an awful lot of detail on what people can and can't do with the software. And as you note, it's in the hands of a group that's willing to reshuffle the cards, making the license a moving target.

In addition, Peter Galli over at eWeek reported today on a survey of Open Source Developers about the GPLv3.  Strangely, the glass-is-half-full headline, "Poll Shows Developer Support for GPLv3," doesn't really fit the results of the survey.

Perens Invokes the “Nuh Uh!” Defense, Calls Us Names

Following up on a piece he wrote about my recent GPLv3 analyses, Peter Galli interviewed free software advocate Bruce Perens to get his response to the our 20 pages of legal analysis.  His response can best be summed up as “Nuh Uh!” and “They’re ugly! (because they have Microsoft as a member)”

It is nice to know that there are a "couple of dozen" corporate attorneys on the GPLv3 committees are constantly evaluating legal risks.  Perhaps Mr. Perens should forward my papers to them so that they can actually read them before commenting on the validity of the arguments.

To be honest, Mr. Perens has raised very little I can respond to.  He only dismisses the points I made in my paper as "nothing more than words" or "bogus", but with little analysis. Perens's answers simply do not address the main risk posed by GPLv3, as stated in the paper;  GPLv3 may be interpreted as FSF tortiously interfering with a legal contract between two parties concerning intellectual property issues between them.  Mr. Perens cites to the case of Daniel Wallace which was based on a predatory pricing theory under another version of the GPL and not a group boycott theory as I was suggesting in respect of the GPLv3.

Different facts, different law, different result. 

It is also strange that he would counter my arguments - at least in part - by referring to GPLv2.  It was clearly my intent to address issues that arise under GPLv3.  Hopefully, Mr. Perens can share my papers with the FSF legal team so that we can find ways to improve the language and avoid these issues. These are important issues that deserve a full analysis and airing.