conducting a sane and efficient GPLv3, LGPLv3 Review

Alexander Terekhov alexander.terekhov at
Fri Aug 3 12:53:12 UTC 2007

On 8/2/07, Walter van Holst <w.van.holst at> wrote:
> > -----Oorspronkelijk bericht-----
> > Van: Alexander Terekhov [mailto:alexander.terekhov at]
> > Verzonden: donderdag 2 augustus 2007 19:40
> > Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
> > (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 with no practical way
> > to obtain rights to it under terms other than the GPL)
> And what would the _legal_ problem be with that?

The term binding all third parties in future works (in particular GPL
"no charge" restriction) creates a "right against the world" which
subjects it to preemption. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447,
1454 (7th Cir. 1996).

Consider also:

In addition to statutory preemption, preemption under the Supremacy
Clause of the Constitution must be examined. Even if a particular cause
of action survives a 301 preemption still may be preempted
if it "stands as an obstacle to the accomplishment of the full purposes
and objectives of Congress." O'Rourke, supra note 62, at 534; see also
Maureen A. O'Rourke, Fencing Cyberspace: Drawing Borders in a Virtual
World, 82 Minn. L. Rev. 609, 694 (1998) [hereinafter O'Rourke, Fencing
Cyberspace]; Cohen, supra note 11, at 23. For the fundamental statement
of Supremacy Clause copyright preemption, see Goldstein v. California,
412 U.S. 546, 559 (1973). In Goldstein, the Court distinguished three
types of situations: (1) areas in which federal law mandated protection;
(2) areas in which federal law mandated no protection; and (3) areas in
which federal law was silent. See id. Only in the last category of cases
was state law free to operate: "Where the need for free and unrestricted
distribution of a writing is thought to be required by the national
interest, the Copyright Clause and the Commerce Clause would allow
Congress to eschew all protection. In such cases, a conflict would
develop if a State attempted to protect that which Congress intended to
be free from restraint or to free that which Congress had protected." Id.

"to free that which Congress had protected" develops a conflict, Supremes said.


"Copyright and patent laws give authors a *right* to charge more [than
zero], so that they can recover their fixed costs [and thus promote
innovation]" observed prolific and learned Chief Judge Frank

Got it now?


More information about the License-discuss mailing list