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Re: Wallace's reply brief

From: Ferd Burfel
Subject: Re: Wallace's reply brief
Date: Tue, 1 Aug 2006 21:25:17 -0500

"David Kastrup" <> wrote in message 
> Alexander Terekhov <> writes:
>> By definition a third party is a stranger to a contract. ("It goes
>> without saying that a contract cannot bind a nonparty.") (EEOC V.
>> Waffle House, Inc., 534 U.S. 279, 294 (2002)). The contract term
>> that purports to control (without privity) the distribution rights
>> of all "all third parties to their own exclusive contributions in
>> derivative and collective works creates a "right against the world"
>> ? that is, in essence, a new copyright regulation. ("A copyright is
>> a right against the world. Contracts, by contrast, generally affect
>> only their parties; strangers may do as they please, so contracts do
>> not create "exclusive rights.") (ProCD Inc. v.  Zeidenberg, 86 F.3d
>> 1447, 1454 (7th Cir. 1996)).
> This alone is such a hilarious piece of nonsense.

I was thinking the same thing.  What a leap of logic.

A contract indeed can not bind a "non-party", but a "third-party" does NOT 
always equal "non-party".  While a "third-party" that does not accept the 
terms of the license (or is not even aware of it) would be a "non-party", a 
"third-party" that DOES accept the license would become a "party" to the 
license by accepting it's terms, and would therefore be bound by it. 

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