Re: Eben was absent that day in law school
Alexander Terekhov [EMAIL PROTECTED] 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. § 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. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
Moglen's underling Fontana in action. http://www.ciocentral.com/article/Questions+Still+Abound+over+GPL+3+/171577_1.aspx On the DRM front, there is little the GPL can do to fix this, and this is a matter that needs to be taken up by the legislature, Fontana said. But, that being said, the license also makes it difficult for people to use the GPL to invoke DRM protections, and we want to make sure that if they are going to invoke DRM restrictions that they can't use our license to do that, he said. Also, on the issue of derivative works, Fontana said the draft license has not changed the language that defines what a derivative work is, and I don't think that we can. But Lawrence Rosen, a partner with Rosenlaw Einschlag, said people want to know whether, if they linked two pieces of work together, this creates a derivative work. People do not know if that is the case here, and the license is not entirely clear about the obligation to release source code, and that uncertainty hurts potential adoption of the GPL, he said. regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
Barnes Thornburg LLP on price: --- Plaintiff's argument that an agreement to license any derivative works at no charge is somehow a minimum re-sale price is untenable given that the provision does not set a price for licenses at all, but rather provides that there shall be no price for licenses. (Response at 10; GPL para. 2(b).) Furthermore, a minimum price agreement requires that any price below that price would violate the agreement. There is no indication that in the unlikely event a licensor wished to license modifications to the GPL at a price below zero (i.e., an effective negative price by paying the licensee to take the license), such would in any way violate the GPL. To the extent the GPL is analogous to any type of price restraint, it would be no more than a maximum vertical restrain subject to the rule of reason. --- He he. regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Barnes Thornburg LLP on price: --- Plaintiff's argument [...] is untenable [...] He he. You are hopping with glee because a commentary butchers the theories of your personal hero? Well, Wallace certainly provides you with fun, it appears. Hey dak, do you know where can I find negativily priced GPL'd stuff? regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Barnes Thornburg LLP on price: --- Plaintiff's argument [...] is untenable [...] He he. You are hopping with glee because a commentary butchers the theories of your personal hero? Well, Wallace certainly provides you with fun, it appears. Hey dak, do you know where can I find negativily priced GPL'd stuff? You better start looking, since Wallace's line of argument implies just that. Which is why it is untenable. And once again you got it backwards. Wallace's argument was that - The alleged contractual agreement (the GPL) used by the defendants explicitly requires a single, uniform licensing fee be charged for use of the distributed intellectual property: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. GPL sec. 2(b) [emphasis added]. This uniform pricing requirement fixes simultaneously and non-negotiably, both the minimum (floor) and maximum (ceiling) prices for all parties. This type of uniform minimum price fixing scheme in a vertical agreement thus constitutes a per se violation of sec. 1. - And now Barnes Thornburg LLP argues that Wallace's argument is untenable because there might be negatively priced GPL'd stuff and that there is no indication that ... such would in any way violate the GPL. So once again, do you know where can I find negatively priced GPL'd stuff, dak? Half the profit for a link! Heck, 75 percent!! 90 if you insist!!! regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
Alexander Terekhov [EMAIL PROTECTED] writes: Barnes Thornburg LLP on price: --- Plaintiff's argument [...] is untenable [...] He he. You are hopping with glee because a commentary butchers the theories of your personal hero? Well, Wallace certainly provides you with fun, it appears. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Barnes Thornburg LLP on price: --- Plaintiff's argument [...] is untenable [...] He he. You are hopping with glee because a commentary butchers the theories of your personal hero? Well, Wallace certainly provides you with fun, it appears. Hey dak, do you know where can I find negativily priced GPL'd stuff? You better start looking, since Wallace's line of argument implies just that. Which is why it is untenable. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
Alexander Terekhov wrote: Barnes Thornburg LLP on price: --- Plaintiff's argument that an agreement to license any derivative works Uhmm. Wallace's argument was about collective works to begin with. - Alternative Vertical Analysis In the alternative, if the GPL license is viewed simply as distributing a collective work in a vertical agreement ... - Somehow it got translated by Barnes Thornburg LLP to Plaintiff's argument that an agreement to license any derivative works Any ideas? Hey dak? regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Eben was absent that day in law school
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] 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. § 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. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
