The Copyright Act preempts the GPL

Fri Feb 6 18:00:22 UTC 2004

Daniel --

A copyright right is not an affirmative right to do something. It is a
negative right. It is a right to prevent someone else from doing
something. (This 'negative' characteristic is true of patent rights as
well - they are also negative rights.)

A copyright holder does not have a right to make a copy. Rather, the
copyright holder has the right to prevent others from making a copy. 

So, the interplay between the rights of author of an original work and
the rights of the author of a derivative work interlock as follows:
The author of the derivative work has the exclusive right to make copies
of the derivative work. That means that they can prevent others from
making copies of the derivative work. However, the author of the
derivative work does not have the affirmative right to make copies of
their derivative work. There may be various impediments to their ability
to legally copy their own work. For example, their right to make copies
is contingent on permission from the author of the original work
(because the derivative work includes copyrightable content from the
original; otherwise it would not be considered a derivative work). The
copyright right of the author of the derivative work is not a right to
make copies. 

Thus the logic in your analysis fails at the point of the second
sentence of the following paragraph:

"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."

-- Scott

-----Original Message-----
From: daniel wallace [mailto:danw6144 at insightbb.com] 
Sent: Wednesday, January 28, 2004 6:44 AM
To: license-discuss at opensource.org
Subject: Re: The Copyright Act preempts the GPL

>  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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