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Re: Bye - Bye , open source derivative works litigation

From: RJack
Subject: Re: Bye - Bye , open source derivative works litigation
Date: Thu, 11 Feb 2010 11:26:08 -0500
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
On 2/10/2010 6:29 PM, RJack wrote:
????????????????? OUTSIDE OF COPYRIGHT LAW? ?????????????????????????? That's pure contract law for those GPL users! Oh dear Hyman, just show me the downstream contractual "privity" required to make this crackpot scheme enforcable.

Anyone who does not believe that the GPL is meaningful must then limit himself to using GPLed code only in the way pure copyright law
 allows, since they have nothing else which grants them the ability
to do otherwise. That's fine.

You can't constrain the GPL license to "pure copyright law".
All copyright licenses are contracts:

"Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006).

Presumably, some folks desire the GPL be legally enforceable. For those
who do, they must accept the construction of the GPL under general
contract principles:

"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995)

"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08."
Amcast Indus. Corp. v. Affiliated FM Ins. Co., 584 N.W.2d 218, 226
(Wis. App. 1998). 187 F.3d 690 (7th Cir. 1999).

Hyman, I know that you, DAK, Alan and other interested contributors are
are always open to the research in scholarly legal journals such as the
"The American Bar Association's Intellectual Property Newsletter" and
the "Chicago-Kent Journal of Intellectual Property". Here are two
fascinating and well researched articles by legal experts. They are
copyrighted so I can't provide the text but you can easily access them
at your favorite local law library or purchase them online:

1)  2007-01-15 - ABA IP Journal Publishes Article by Skye Group Managing
Director: "The American Bar Association's Intellectual Property
Newsletter has published an article by Managing Director Doug Hass
entitled "The Myth of Copyleft Protection: Reconciling the GPL and Linux
with the Copyright Act. Read the article starting on page 22 in the Fall
2006 issue."

2)  "A Gentlemen's Agreement: Assessing the GNU General Public License
and its Adaptation to Linux". Chicago-Kent Journal of Intellectual
Property, Vol. 6, p. 213, 2007.

"The Captain's scared them out of the water!"


RJack :)

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