Re: "GPL requirement could have a chilling effect on derivative distros"

[Alexander Terekhov]

Apropos preemption...

IBM's argument:

> "as is evident from the ProCD case Plaintiff cites, copyrights may be
> licensed by a uniform contract effective against all who choose to use
> it. (Response at 6) (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
> 1454 (7th Cir.1996).) The court in ProCD held that  a "shrinkwrap"
> software license, that is, a license that accompanies software limiting
> its use, is an effective contract under the UCC against anyone who
> receives the terms of the license and uses the software. Id. at 1452.
> The court also held that state enforcement of such contracts under the
> UCC would not be preempted by the Copyright Act or 17 U.S.C. § 301. Id.

That's all fine and dandy, but Wallace's claim of preemption is basically
driving at footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN CONTRACT 
AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer:

(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 
pool)

-----
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 
information. How or why this would affect a preemption analysis as 
compared to a misuse or antitrust claim is not clear.
-----

It will be interesting to see whether appelate court can grok it.

regards,
alexander.