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."
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf> 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 information.
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.