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Re: GPL v3 Draft

Breaking new.

Barnes & Thornburg LLP on the GPL (Wallace v IBM et al):

Although it is not clear how it is relevant to whether the per se or
rule of reason analysis would apply, Plaintiff also argues that the
GPL "purports to defeat the requirements of contractual privity and
thus evade the prohibition under 17 U.S.C. 301 concerning the
contractual regulation of copyrights". (Response at 4.) Section 301
of 17 U.S.C., however, concerns the preemptive effect of the Copyright
Act with respect to other laws and does not prohibit "contractual
regulation of copyrights". To the contrary, 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.
The GPL, like the shrinkwrap license in ProCD, is a license
applicable to anyone who receives its terms and chooses to use it,
and by using it, accepts the terms under which the software was
offered. Id.

My, this is such a fun. Kudos to Wallace.


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