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From: Alexander Terekhov
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:08:51 -0000

Hyman Rosen wrote:

[... ...]

> As usual, the sources you cite contradict your thesis.
> Preemption is entirely irrelevant to the GPL.

Read a bit more than a couple of introductory paragraphs, silly Hyman.

"Courts simply attempt to apply to contract claims the same two-prong
preemption test that they apply to non-contract state law claims. Courts
have little or no difficulty applying the subject matter requirement to
contract claims in the same case-by-case manner that they apply it to
other state law claims. Courts have a great deal of difficulty, however,
in applying the equivalence requirement in this way. 

There are three doctrinal approaches to determining whether a contract
claim is equivalent to a copyright claim and therefore preempted. The
first approach holds that a contract right is simply not equivalent to a
copyright because it reflects private ordering and applies only to those
in privity. Put another way, the mutual promise required to make a
contract is itself an “extra element” that defeats preemption.62 This
categorical approach to contract preemption cases comes, in large part,
from Judge Easterbrook’s decision in ProCD v. Zeidenberg.63"


(consider that over time, under "bazaar model" with long chain of 
derivation in derivative works and additions to collective works by 
different authors, GPL'd IP becomes practically locked within the GPL 

Contracts do not involve the same basic scope or impact as do property 
rights established directly by operation of common law or state statute. 
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues, 
that case involved the claim that a contractual restriction on the use 
of an uncopyrighted database was preempted because the subject matter 
of the transaction was unprotectable under copyright law.90 The court 
correctly rejected this argument. It drew an explicit distinction 
between a property right (potentially preempted) and a contract right. 
"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.'"91 This reflects the 
transactional base of a contract and draws an important, relatively 
explicit line for purposes of preemption claims. Enforcing a contract 
between two parties leaves the subject matter of the contract (whether 
copyrighted or not) entirely unencumbered by any contract issue as to 
others not party to the transaction. Property rights and contract rights 
are simply not equivalent.92 

92. It can be argued that this might change if, in effect, no third 
party can avoid being bound by the contract terms in order to use the 

In context of

"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . . 

But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) 

To repeat from Nimmer:

"It can be argued that this might change if, in effect, no third party 
can avoid being bound by the contract terms in order to use the 
information. "

To wit: 

"As far as I can tell, Moglen declares that he has a problem with the 
global variability of contract law. He says in an interview with Kathy 
Bowrey (thanks to David Berry for the link): “This is the very reason 
why I have resisted contractualisation completely because contract law 
is totally non uniform around the world.” With all due respect to Prof. 
Moglen, it is not up to him to decide if contract law applies to a 
licence, it is up to the courts. I find a part of the interview very 
telling. Here Moglen says: 

“So all that I do is bring an infringement action. It is the 
defendant’s responsibility to prove license and the only credible 
license for the defendant to plead is my license, because code is not 
otherwise available except under that license.” 

That is a dangerous position!"



On information and belief, Defendant alleges that Plaintiffs’ claims 
are barred, limited and/or excluded on the grounds that the alleged 
license at issue in this case and/or certain provisions contained 
therein are illegal, unconscionable and barred by public policy as 
well as by statutory and case law.


P.S. "I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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