[linux-elitists] Preemption of the GPL
Karsten M. Self
Fri Aug 22 05:27:52 PDT 2003
on Thu, Aug 21, 2003 at 02:35:47PM -0600, Jonathan Corbet (email@example.com) 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:
> 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 and whether published or unpublished, are governed exclusively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).
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 <firstname.lastname@example.org> 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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