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. ยง 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. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss