The Copyright Act preempts the GPL

John Cowan cowan at
Sat Feb 7 02:00:53 UTC 2004

Peterson, Scott K (HP Legal) scripsit:

> 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.

By your definitions there are no affirmative rights whatsoever, for there
is no right against which some countervailing right cannot be asserted
in *some* situation.  You might as well say that the right to free
speech is merely negative because one has no right to shout "Fire!" in
a crowded theatre.

As for the duty, if A has a right to do something, then B has a duty not to
hinder A in the doing of it:  Austin one-oh-one.

> 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.

Since the right to copy is explicitly granted, and since there is no
right without a remedy, a court would surely find a remedy of some
sort, probably by way of injunction, or perhaps (in a practical situation)
tortious interference with advantageous relations.   IANAL, TINLA.

> 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.

Can you point to case law justifying this?

> 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). 

This doesn't seem to me to be a very good hypo, for it is far from clear
whether the "particular novel" counts as as a derivative work rather than
a collective work.  What you need is the author of a novel successfully
suing for copyright infringement those who pirate a movie based on the
novel, or a translation of the novel, or something of the sort.

John Cowan   jcowan at
    "Mr. Lane, if you ever wish anything that I can do, all you will have
        to do will be to send me a telegram asking and it will be done."
    "Mr. Hearst, if you ever get a telegram from me asking you to do
        anything, you can put the telegram down as a forgery."
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