The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

Your hypothetical is directly on point:
"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?"

That is precisely the right that I am pointing out that I have NOT seen
exercised and for which I am aware of no basis in US law. I do not
believe that a showing by Bob that he is the copyright owner would help
him at all. 

For example, Alice may have a copyright in a different book, and Alice
may be asserting that the book that Bob's been distributing infringes
her rights in her book. Bob's acquisition of copyright ownership in the
book that he's distributing does not help him in Alice's case against
him. In other words, Bob's right to make copies of the copyrighted work
that he owns does not do him any good in trying overcome this impediment
to his copying.

If what you mean by "transfer" is that Bob shows that the copyright
ownership that Alice had asserted had really been transferred to Bob,
then, of course Bob is off the hook (court will no longer support
Alice's attempt to impede Bob's copying). But that result is because of
Alice's LOSS of the relevant copyright, not because of Bob's gain. The
same result would obtain even if Bob showed that Alice had transferred
the asserted copyright to someone else (not to Bob).

-- Scott

-----Original Message-----
From: jcowan at reutershealth.com [mailto:jcowan at reutershealth.com] 
Sent: Monday, February 09, 2004 1:19 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:

> - 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        http://www.ccil.org/~cowan
jcowan at reutershealth.com
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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