I haven't been covering the SCO lawsuit against IBM here, because open-source software and the fortunes of Linux are not in the scope of the blog, even if they are right next door. But today's News.com is running an interview with Mark Heise, one of the SCO lawyers. In one exchange, Heise makes a claim that is strongly relevant to open access. He said, "We don't think the GPL applies [to Linux]. We believe it is pre-empted by the federal copyright law." This is fascinating and deserves a closer look. Why does Heise think federal copyright law preempts a contract like GPL? In general, the federal preemption cases have gone the other way, and this has generally been disastrous for libraries and access to scholarship. For example, licensing agreements that ask users to waive their fair-use rights (granted by federal copyright law) have been upheld in court, even when there is little or no negotiation by the parties. Let's put it this way. Either federal copyright law preempts licensing agreements (generally governed by state law) or it doesn't. Here's the good news: If it does, then most journal licensing agreements contain unenforceable clauses, and if it doesn't, then the GPL is valid and the SCO lawsuit fails. Here's the bad news version: If it does, then the GPL is preempted and SCO has a leg to stand on, and if it doesn't, then journal licensing agreements are altogether enforceable. If anyone has more detail on the SCO argument for federal preemption, I'd like to hear it. There's good news whether this argument wins or loses, and bad news whether it wins or loses.
Posted by
Peter Suber at 8/28/2003 01:16:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
