The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

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Your assertion that these are "affirmative" rights is misleading. The copyright owner has the right to be the exclusive one to do those things, but that's different from saying that the copyright owner has the affirmative right to do them. In other words, these are rights to exclude others, not the rights to do things. The distinction becomes apparent when one looks at the rest of title 17, especially chapter 5 which provides the copyright holder with various remedies. Note that those remedies do not provide recourse against those who might prevent the copyright holder from doing one of these acts; rather those remedies address situations where others are doing things without the copyright owner's permission. 

-- Scott

-----Original Message-----
From: Arien Ferrell [mailto:Arien.Ferrell at Sun.COM] 
Sent: Friday, February 06, 2004 4:49 PM
Cc: license-discuss at opensource.org
Subject: Re: The Copyright Act preempts the GPL


A copyright owner (owner of a wholly original work) has a number of 
affirmative exclusive rights:

17 U.S.C.A. § 106

UNITED STATES CODE ANNOTATED
TITLE 17. COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
§ 106. Exclusive rights in copyrighted works


Subject to sections 107 through 122, the owner of copyright under this 
title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the 
public by sale or other transfer of ownership, or by rental, lease, or 
lending;
(4) in the case of literary, musical, dramatic, and choreographic works, 
pantomimes, and motion pictures and other audiovisual works, to perform 
the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, 
pantomimes, and pictorial, graphic, or sculptural works, including the 
individual images of a motion picture or other audiovisual work, to 
display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work 
publicly by means of a digital audio transmission.


This should be current, but could be modified by case law (or other 
statutes), which I'd be very interested in seeing.

In any event, the author of a derivative work, which includes work other 
than his own, should have the same rights listed above, except 'subject 
to' the rights of the owners of the works other than his own.  I'm not 
so sure that only a negative right exists at law, though, assuming 
everyone up the food chain gives permission.  I could be wrong...I'm not 
a copyright attorney.

Could someone please forward a copy of the beginning of the discussion? 
  I only came in a few emails ago.  Thank you!!



Peterson, Scott K (HP Legal) wrote:
> 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.
> 


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