Re: Wallace's reply brief

[Alexander Terekhov]

Ferd Burfel wrote:
[...]
> That's all fine and dandy, too.  But a third-party choosing to accept the
> terms of the license is no longer a stranger, and becomes a party to it.

True.

> 
> > 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.
> 
> Something like the way no third-party can avoid being bound by the terms of
> the GPL ...

And only the GPL. The GPL is the only choice to obtain rights to property 
locked in the GPL pool (don't confuse it with non-bazaar models a la MySQL 
and Trolltech where no GPL-only forks exist). The GPL doesn't allow 
sublicensing under different "commercial" terms along the lines of the 
CPL/EPL/BSD/etc.

> Is Wallace really helping his case by mentioning this?

Wallace:

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IBM et al. state [IBM Brief at 15, ¶1] “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”. This statement
constitutes a mea culpa with respect to the extension of “intellectual
property rights beyond those conferred by Congress” [see IBM Brief at 15,
¶2].
The contractual extension of control to the copyrights of all third
parties who accept the GPL offer is an egregious misuse of copyright that
may rise to the level of an antitrust violation. (“[W]e left open the question
whether copyright misuse, unless it rises to the level of an antitrust
violation. . .”) (Assessment Technologies of WI, LLC v. Wiredata. Inc., 350
F.3d 640 (7th Cir. 2003)).
The GPL purports to extend it’s intellectual property control to all
third parties’ software patents as well as copyrights. (“Finally, any free
program is threatened constantly by software patents. . . To prevent this,
we have made it clear that any patent must be licensed for everyone's
free use or not licensed at all.”) [Ex A (GPL) at 1].
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Got it now, Burfel?

regards,
alexander.