Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
From: "Alexander Terekhov" <>
Date: Thu, 2 Aug 2007 19:39:42 +0200

On 8/2/07, John Cowan <> wrote:
> Walter van Holst scripsit:
> > > 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.
> >
> > I can't answer that since I hardly know anything about US Law, but I
> > am pretty certain others will fill in pretty soon.
> I have no clue what the point of this reference is.  Section 301 says
> that the Copyright Act preempts state copyright law.

Here is some clue... footnote 92 in BREAKING BARRIERS: THE RELATION

(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)

Contracts do not involve the same basic scope or impact as do property
rights established directly by operation of common law or state statute.
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues,
that case involved the claim that a contractual restriction on the use
of an uncopyrighted database was preempted because the subject matter
of the transaction was unprotectable under copyright law.90 The court
correctly rejected this argument. It drew an explicit distinction
between a property right (potentially preempted) and a contract right.
"A copyright is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as they please,
so contracts do not create 'exclusive rights.'"91 This reflects the
transactional base of a contract and draws an important, relatively
explicit line for purposes of preemption claims. Enforcing a contract
between two parties leaves the subject matter of the contract (whether
copyrighted or not) entirely unencumbered by any contract issue as to
others not party to the transaction. Property rights and contract rights
are simply not equivalent.92

92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the

> > Why should they? It works in practice, why bother having court cases
> > for something that has worked fine for over a decade now? Disputes about
> > the GPL tend to be settled out of court, keep that in mind. Apparantly
> > all lawyers involved in every case did not expect to have a strong case
> > in court. Court cases usually are about unclear situations, they tend
> > not to have a very evident solution. The vast majority of GPL cases
> > so fare were clearly evident enough that the infringing party didn't
> > dare to go to court, despite the vagueness of the GPL's wording.
> Indeed.  Furthermore, as has been pointed out many times, it is suicidal
> for a defendant to directly attack the GPL's validity, as without the
> public license they would be exposed to the full rigor of copyright
> infringement.

Yeah. How nice. As if invalid and hence unenforceable licensee's
obligations/covenants can't simply be stricken out by big red marker
of justice (so to speak) without making licensees liable to

g. Finally, there is the important question of the consequences of the
assumed invalidity of the GPL. The Munich court argued that the
question of the enforceability of the GPL was in no way relevant.
According to the Bavarian judges, if the GPL is legally ineffective,
the user does not have a license and is thus violating copyright law.
On the face of it, that sounds plausible, but it is
not. If somebody offers software on the Internet for downloading and
links the download with invalid general terms, he can hardly sue for
copyright infringement. Instead, the validity of the standard terms is
a matter for the software distributor: if he wants to use invalid
contractual terms, he bears the risk of their use. It would violate
equity and good faith if he were allowed to sue others merely on the
grounds that his license terms were invalid.