The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

John --

I'll reply to two points:
(A) an authors positive right to copy? no.
(B) derivative works: what rights does the author of the original work
have

(A)
You say: "each person has a duty not to hinder him [the author making a
copy of his own work]".
I am aware of no basis in US copyright law for such a duty. I am aware
of no basis in US copyright law for a positive right to make a copy. By
writing something down, you become a copyright owner. That ownership
right does not give you any special privilege or right to copy,
distribute, etc. that work. If others have rights that are infringed by
such acts, they are free to assert those rights to prevent you from
undertaking those acts. They have no "duty not to hinder" you.

How is this manifest in the law? The US copyright law gives remedies
against those who undertake one of the exclusive actions without the
copyright owner's permission (see 17 USC 501 and following). Let me know
if you will not find in that copyright law any remedy against someone
who hinders the author from making a copy of their own work.

(B)
Yes, the authorized creator of a derivative work will typically receive
permission to copy and distribute the derivative work in the terms of
the license that gives the permission to make the derivative. For the
author of the derivative, I don't immediately see whether it matter if
you think if that permission being a condition of creating the
derivative or a permission for copying and distribution of material from
the original author's work. It doesn't matter; the author of the
derivative needs the original author's permission one way or the other.
However, the difference can be clearly seen in those downstream. Those
downstream who make unauthorized copies of the derivative work infringe
both the rights of the original author as well as the rights of the
author of the derivative. In other words, the permission to create the
derivative is not the end of the rights of the original author. As long
as their copyrightable material is present, their permission is needed.
To illustrate: author of original work gives permission for a second
author to create a derivative work and to publish it as chapter 26 in a
particular novel; someone then makes an unauthorized copy of chapter 26;
that copy of chapter 26 infringes the rights of the original author as
well as the rights of the author of the derivative. The original authors
claim against the copier of chapter 26 is not based on that copier
having violated the original author's exclusive right to make derivative
works; it is based on violation of the original author's exclusive right
to make copies of their work (literal or otherwise). 

The rights provided under US copyright law are negative rights (the
right to exclude others), not positive rights (the right to do something
yourself).

-- Scott

-----Original Message-----
From: John Cowan [mailto:cowan at ccil.org] 
Sent: Friday, February 06, 2004 1:08 PM
To: Peterson, Scott K (HP Legal)
Cc: license-discuss at opensource.org
Subject: Re: The Copyright Act preempts the GPL


Peterson, Scott K (HP Legal) scripsit:

> 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.

> 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.

> 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.

-- 
John Cowan      http://www.ccil.org/~cowan      jcowan at reutershealth.com
Be yourself.  Especially do not feign a working knowledge of RDF where
no such knowledge exists.  Neither be cynical about RELAX NG; for in the
face of all aridity and disenchantment in the world of markup, James
Clark is as perennial as the grass.  --DeXiderata, Sean McGrath
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