The Copyright Act preempts the GPL

[daniel wallace]

>  It does not. The GPL imposes a condition on anyone who wishes to
>  make a derivative work, viz. that the derivative work, if distributed
>  at all, be distributed under the conditions of the GPL and no
>  others.

When you impose a "condition" on another person's exclusive legal
rights you are asking that person to wave a legal right. After all,
the right is "exclusive" and no one may impose a condition without
that person's concious agreement to waive that right.

"In general a waiver of any legal right at the request of another party is
a sufficient consideration for a promise." (Parsons on Contracts, 444.)

"It is not essential in order to make out a good consideration for a 
promise to
show that the promisor was benefited or the promisee injured; a waiver 
on the
part of the latter of a legal right is sufficient." Louisa W. Hamer v. 
Franklin
Sidway 124 N.Y. 538; 27 N.E. 256; 1891 N.Y. (Court of Appeals of New York).

The unilateral permissions to which the FSF speaks are derived from 
patent case
law. The theory says that in a restrictive license a patentee may impose any
condition he wishes upon "his" reward of the right to exclude others. 
There's
no privity requirement and no mutual exchange of obligations as in a 
contract.
After all they are the patentee's rights alone. This principle has never 
been
challenged
 
What a bare license (unilateral permission) cannot do is place a restriction
on "another's" mutually exclusive reward of rights. The authorization of a
derivative work always creates a second mutually exclusive copyright in the
modifying author's work. Patent law and bare license evolution never 
anticipated
a derivative work. There is no such thing as a "derivative patent". In order
to secure the modifying author's permission to distribute his work in the
derivative copyright work, a "binding legal form" must be implimented. 
That's
what IBM calls the GPL in the SCO v. IBM lawsuit.

IBM's description is:

"The Linux developers' public agreement to apply GPL terms expresses in
a binding legal form the conscious public covenant that defines the
open-source community -- a covenant that SCO itself supported as a Linux
company for many years."
 
IBM calls the GPL a "public covenant" which is another term for a 
"public trust".
This is an attempt to overcome privity problems in the GPL. A "public 
trust" does
not require privity. Both "binding legal forms" and "public trusts" use 
the common
law of the states for enforcement.

The new universal right of "copyleft" is left to state law enforcement and
thus preemption by section 301 of the Copyright Act.
 


 

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