The Copyright Act preempts the GPL

Arien Ferrell Arien.Ferrell at Sun.COM
Fri Feb 6 19:07:54 UTC 2004

I think I'm a latecomer to this thread, but I'd be interested in seeing 
the first few messages relating to the subject heading.  How does the 
Copyright Act preempt GPL?

A couple minor points of clarification relating to the message I received:

>>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. 
> Of course the copyright holder has the right to make a copy of the work.
> That is to say that each person has a duty not to hinder him.

The cprt holder is the owner, with the full bundle of ownership 
rights...make copies, sell, etc.  The copyright protection prevents 
others from exercising those rights, without permission.

>>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. 
> Correct.
>>However, the author of the
>>derivative work does not have the affirmative right to make copies of
>>their derivative work.
> Of course he does, provided the derivative work was prepared under a
> license from the copyright holder of the original work.

The derivative author's rights are 'subject to' the original author's 
right, with regards only to the original author's piece of the dreivation.

The derivative author's copyright can prevent others from copying the 
derivation.  If a 3rd part unlawfully copies the derivation, he/she 
could face the original author as well as the derivative author.

>>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). 
> Not so.  *Preparing* the derivative work in the first place is contingent
> on that permission, and of course the permission may be conditional
> (and often is).  But once the derivative work is lawfully prepared,
> all the other exclusive rights in the copyright bundle attach to the
> copyright holder.
> New Line Cinema obtained a license from Tolkien Enterprises (not the same
> as the Tolkien Estate) to make a derivative work based on the _Lord of the
> Rings_.  They then have the exclusive right to distribute copies of that
> work, and (more relevantly) the exclusive right to perform it publicly.
> No further permission is required.
> If you think otherwise, please point to the relevant sentence of the
> Copyright Act or case law.

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