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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Rjack
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Wed, 18 Mar 2009 18:48:53 -0400
User-agent: Thunderbird 2.0.0.19 (Windows/20081209)

Rahul Dhesi wrote:
Rjack <address@hidden> writes:

Well... there weeeeeeeeeeeeeeeeeeeeeeent the goalposts.

Out to the fifty yard line...

A perceptive observation.

The evolution of the GPL from revision 1 to 2 to 3 doed reflect shifting goalposts, designed to adjust to changing conditions. No doubt there will be a version 4 in the future if and when it is needed. Rjack is a strong believer in stare decisis, i.e., once you decide something, you stick with it. But that concept does not apply to changing conditions. Both the GPL and the law must adapt, and they do.

Yeah... but it is Congress who changes public copyright law and not
contract lawyers or the courts  You obviously don't (and probably
never will) understand that Congress told the Supreme Court after
their GOLDSTEIN v. CALIFORNIA, 412 U.S. 546 (1973) decision that
with 17 USC 301 Congress would from then on write the public
copyright laws.

"The legislative history of section 301, which Congress passed in
1976, clearly evidences Congress' intent to overrule by statute
cases such as Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303,
37 L.Ed.2d 163 (1973) (holding that the Copyright Act of 1909
preempts only state laws conflicting or interfering with its
provisions). The Report of the House of Representatives states:

The intention of section 301 is to preempt and abolish any rights
under the common law or statutes of a state that are equivalent to
copyright and that extend to works coming within the scope of the
federal copyright law. The declaration of this principle in section
301 is intended to be stated in the clearest and most unequivocal
way possible, so as to foreclose any possible misinterpretation of
its unqualified intention that Congress should act preemptively, and
to avoid the development of any vague borderline area as between
State and Federal protection."; Crow v. Wainwright, 720 F.2d 1224
(11th Cir. 1983).

If you think that a public contract of adhesion such as the GPL is
going to establish a new rule controlling the *distribution* of
derivative works then you are clearly mistaken:

"Thus, it is not the intent of this section to claim rights or
contest your rights to work written entirely by you; rather, the
intent is to exercise the right to control the distribution of
derivative or collective works based on the Program."; GPL sec (2b).

The Copyright Act contains no such provision and you can't create
one by state common law of contracts.

Sincerely,
Rjack :)


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