The Copyright Act preempts the GPL

jcowan at jcowan at
Mon Feb 9 18:18:47 UTC 2004

Peterson, Scott K (HP Legal) scripsit:

> - rights that are enumerated in the Bill of Rights, such as relating to
> free speech;

Well, very good.  Let's take "free speech" and plug it into your
explication of affirmative rights:

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

But you cannot go to court and overcome the impediment that prevents you
(to be maximally cliche-ridden) from shouting "Fire" in a crowded theatre.

So it might be that you call a right "affirmative" if in *some*
circumstances you can get a court to overcome a hindrance from
exercising them.  But then consider this hypo:  Alice gets an T.R.O. (a
"hindrance" par excellence) to prevent Bob from making copies of the
book _Cryptography for Idiots_.  Bob goes to court and proves that by
a transfer of copyright ownership, he is the copyright owner of _CfI_
and therefore has the right under Section 106 (a) to reproduce the
copyrighted work.  Surely this right is affirmative?

John Cowan          jcowan at
Please leave your values                Check your assumptions.  In fact,
   at the front desk.                      check your assumptions at the door.
     --sign in Paris hotel                   --Cordelia Vorkosigan
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