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Re: Wallace's reply brief
From: |
Alexander Terekhov |
Subject: |
Re: Wallace's reply brief |
Date: |
Wed, 02 Aug 2006 09:41:58 +0200 |
Ferd Burfel wrote:
[...]
> A contract indeed can not bind a "non-party", but a "third-party" does NOT
> always equal "non-party". While a "third-party" that does not accept the
> terms of the license (or is not even aware of it) would be a "non-party", a
> "third-party" that DOES accept the license would become a "party" to the
> license by accepting it's terms, and would therefore be bound by it.
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.
-----
It will be interesting to see whether appelate court can grok it.
regards,
alexander.
- Wallace's reply brief (was: IBM's appellee brief in Wallace case), Alexander Terekhov, 2006/08/01
- Re: Wallace's reply brief, David Kastrup, 2006/08/01
- Re: Wallace's reply brief, Alexander Terekhov, 2006/08/01
- Re: Wallace's reply brief, Ferd Burfel, 2006/08/01
- Re: Wallace's reply brief,
Alexander Terekhov <=
- Re: Wallace's reply brief, Rui Miguel Silva Seabra, 2006/08/02
- Re: Wallace's reply brief, Rui Miguel Silva Seabra, 2006/08/02
- Message not available
- Re: Wallace's reply brief, David Kastrup, 2006/08/02
- Re: Wallace's reply brief, John Hasler, 2006/08/02
- Re: Wallace's reply brief, David Kastrup, 2006/08/02
- Re: Wallace's reply brief, Alexander Terekhov, 2006/08/02
- Re: Wallace's reply brief, Ferd Burfel, 2006/08/02
- Re: Wallace's reply brief, Ferd Burfel, 2006/08/02
- Re: Wallace's reply brief, Alexander Terekhov, 2006/08/03
- Re: Wallace's reply brief, Ferd Burfel, 2006/08/03