[linux-elitists] Preemption of the GPL

Jonathan Corbet corbet-elite@lwn.net
Thu Aug 21 13:35:47 PDT 2003


For those who are interested, here's the latest from Mark Heise:

	Section 301 of the Copyright Act says the Copyright Act pre-empts
	any claims that are governed regarding use, distribution and
	copying. We believe that although the GPL is being tossed into the
	fray, it is pre-empted by federal copyright law.

	-- http://zdnet.com.com/2100-1104-5066642.html

Now, this is the Internet age, and we no longer need a lawyer to tell us
what in the law...section 301 can be found at:

	http://www.copyright.gov/title17/92chap3.html

It reads (in part):

	301. Preemption with respect to other laws

	(a) On and after January 1, 1978, all legal or equitable rights
	    that are equivalent to any of the exclusive rights within the
	    general scope of copyright as specified by section 106 in works
	    of authorship that are fixed in a tangible medium of expression
	    and come within the subject matter of copyright as specified by
	    sections 102 and 103, whether created before or after that date
	    and whether published or unpublished, are governed exclusively
	    by this title. Thereafter, no person is entitled to any such
	    right or equivalent right in any such work under the common law
	    or statutes of any State.

I had to read that one through a few times, it's on the dense side.  But,
as far as I can tell, this text is saying that this law pre-empts *other
laws*, in particular state laws, with regard to copyright.  Last time I
checked, no state had enacted the GPL into law.  I don't see how it applies
to a copyright license at all.

Am I missing something here, or is this guy still out to lunch?

jon



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