[linux-elitists] Preemption of the GPL

Karsten M. Self kmself@ix.netcom.com
Fri Aug 22 05:27:52 PDT 2003

on Thu, Aug 21, 2003 at 02:35:47PM -0600, Jonathan Corbet (corbet-elite@lwn.net) wrote:
> 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 	    and whether published or unpublished, are governed exclusively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?

You nailed it Jon.

I posted an ObAOL to someone else's post at LWN's comments sections on
that story.  The rights of copyright holders (§106) include the right to
do, or authorize, a number of actions.   Of which copying, distributing,
and preparing derivative works are three.  "Using" isn't a reserved

The GNU GPL is a license.  A license is "Authority or liberty given to
do or forbear any act" (note that the FSF and Eben maintain that the GPL
_isn't_ a contract, and isn't couched in terms of contract[1]).  

Heise is Schheise.  But that's what happens when he runs into "SCO".



1.  Larry Rosen, among others, are trying to steer FS/OS licensing
toward contract law.  Larry's Jabber License and OSL are very
interesting, particularly for their mutual defense provisions.  There's
a simple elegence in the GPL, and it's worked to date.  Fallback
positions aren't all bad though.

Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    Ceterum censeo, Caldera delenda est.
		        SCO vs IBM Linux lawsuit info:  http://sco.iwethey.org
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