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From: Hyman Rosen
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:09:01 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv: Gecko/20091204 Thunderbird/3.0

On 3/16/2010 11:51 AM, Alexander Terekhov wrote:
To quote IBM:
"The ownership interests contributors to software licensed under the
GPL might have in their modifications are seriously limited, given
that any distribution of those modifications must be done under the
terms of the GPL."

    Copyright holders who engage in open source licensing have the right
    to control the modification and distribution of copyrighted material.
    As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21
    (2d Cir. 1976), the "unauthorized editing of the underlying work, if
    proven, would constitute an infringement of the copyright in that work
    similar to any other use of a work that exceeded the license granted
    by the proprietor of the copyright." Copyright licenses are designed
    to support the right to exclude; money damages alone do not support or
    enforce that right. The choice to exact consideration in the form of
    compliance with the open source requirements of disclosure and
    explanation of changes, rather than as a dollar-denominated fee, is
    entitled to no less legal recognition. Indeed, because a calculation
    of damages is inherently speculative, these types of license
    restrictions might well be rendered meaningless absent the ability to
    enforce through injunctive relief.

"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

Yes. Preemption would apply when state law attempted to restrict
what is otherwise permitted in terms similar to copyright. But the
GPL does not restrict any behavior permitted by unadorned copyright
law, and therefore preemption is irrelevant to the GPL.

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