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. regards, alexander.
