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Re: Eben was absent that day in law school


From: Alexander Terekhov
Subject: Re: Eben was absent that day in law school
Date: Wed, 22 Feb 2006 14:55:33 +0100

David Kastrup wrote:
> 
> Alexander Terekhov <address@hidden> writes:
> 
> > Isaac wrote:
> > [...]
> >> Nonsense.
> >
> > 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. ยง 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.
> 
> For making a royal fool of himself?  Have you ever seen a contract
> stating:
> 
>   5. You are not required to accept this License, since you have not
>      signed it.

Dak, dak, dak. The snippet that I've quoted comes from

    Kendall Millard
    Michael Gottschlich (#22668-49)
    Kendall Millard (#25430-49)
    Barnes & Thornburg LLP
    11 South Meridian Street
    Indianapolis, Indiana 46204
    Telephone: (317) 236-1313
    Facsimile: (317) 231-7433
    Attorneys for Defendant, International
    Business Machines Corporation
    Case 1:05-cv-00678-RLY-VSS Document 56 

not Wallace.

regards,
alexander.


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