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Re: Eben was absent that day in law school

From: Alexander Terekhov
Subject: Re: Eben was absent that day in law school
Date: Wed, 22 Feb 2006 14:19:46 +0100

Isaac wrote:
> Nonsense.  

Breaking new. 

Barnes & Thornburg LLP on the GPL (Wallace v IBM et al):

Although it is not clear how it is relevant to whether the per se or 
rule of reason analysis would apply, Plaintiff also argues that the 
GPL "purports to defeat the requirements of contractual privity and 
thus evade the prohibition under 17 U.S.C. 301 concerning the 
contractual regulation of copyrights". (Response at 4.) Section 301 
of 17 U.S.C., however, concerns the preemptive effect of the Copyright 
Act with respect to other laws and does not prohibit "contractual 
regulation of copyrights". To the contrary, as is evident from the 
ProCD case Plaintiff cites, copyrights may be licensed by a uniform 
contract effective against all who choose to use it. (Response at 6) 
(citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996).) 
The court in ProCD held that a "shrinkwrap" software license, that 
is, a license that accompanies software limiting its use, is an 
effective contract under the UCC against anyone who receives the 
terms of the license and uses the software. Id. at 1452. The court 
also held that state enforcement of such contracts under the UCC 
would not be preempted by the Copyright Act or 17 U.S.C. ยง 301. Id. 
The GPL, like the shrinkwrap license in ProCD, is a license
applicable to anyone who receives its terms and chooses to use it, 
and by using it, accepts the terms under which the software was 
offered. Id.

My, this is such a fun. Kudos to Wallace.


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