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Re: "GPL requirement could have a chilling effect on derivative distros"


From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Thu, 29 Jun 2006 15:23:06 +0200

Apropos preemption...

Looks like Wallace is going to end up in the Supreme Court with that.

------
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 analysis...it 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.

Uhmm.

regards,
alexander.


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