The Copyright Act preempts the GPL

Peterson, Scott K (HP Legal) scott.k.peterson at
Mon Feb 9 16:03:52 UTC 2004

If, when impeded in some way from undertaking one of the actions
exclusive to the copyright holder, a copyright holder could go to court
and use the copyright rights to overcome the impediment - that would be
an exercise of an affirmative right. 

As I am not aware of an example of a copyright holder exercising a right
in such a way, I continue to find it most helpful to think of copyright
as a negative right.

-- Scott

-----Original Message-----
From: Tony Stanco [mailto:Tony at] 
Sent: Saturday, February 07, 2004 8:07 AM
To: lrosen at; Peterson, Scott K (HP Legal); 'John Cowan'
Cc: license-discuss at
Subject: Re: The Copyright Act preempts the GPL


my understanding is the same as Larry's. Copyright provides exclusive
plenary rights to the owner. Patents provide the owner only with the
right to exclude others. I think the distinction was grounded in the
fact that it would be hard to conflict with someone else's copyright in
an original work (which usually stood alone), while complex,
interrelated processes/machines could easily involve multiple and
conflicting patents. As a result, patents are only negative rights and a
person's exploitation of a particular patent in subject to the non
existence of conflicting patent(s).

Best regards,

----- Original Message ----- 
From: "Lawrence E. Rosen" <lrosen at>
To: "'Peterson, Scott K (HP Legal)'" <scott.k.peterson at>; "'John
Cowan'" <cowan at>
Cc: <license-discuss at>
Sent: Friday, February 06, 2004 8:39 PM
Subject: RE: The Copyright Act preempts the GPL

> Scott Peterson wrote:
> > The rights provided under US copyright law are negative rights (the 
> > right to exclude others), not positive rights (the right to do 
> > something yourself).
> I don't think so, Scott. At least that's not how the copyright act 
> reads:
>     "...The owner of copyright under this title has the
>     exclusive rights to do and to authorize any of the
>     following...."
> The patent law is exactly the opposite.
>    "...Every patent shall contain ... a grant to the patentee ...
>    to exclude others from using or selling...."
> /Larry Rosen
> --
> license-discuss archive is at

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