The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

In referring to negative and affirmative rights, I am not attempting to
invoke any magic words. I am merely offering a way of thinking about
copyright rights. I offer the characterization (copyright as a negative
right) because I find that it captures in a simple concept an analytical
device that goes a long way in helping predict what the US copyright law
does. 

I find thinking about copyright as both a positive right and a negative
right adds nothing to the analysis that more accurately predicts an
outcome under US copyright law than does thinking of copyright as a
purely negative right. The example in the message below is illustrative.
Why inject "a matter of right"? The concept adds nothing. If there is no
one with any copyright right by which they can prevent the person from
making a copy, then the person can make a copy. If there is someone with
such a copyright right, then the person cannot make a copy (whether they
have some copyright right of their own doesn't enter into the analysis).

There may be misunderstanding hidden in the phrase "rights in the work
superior to those of Bob". "Superior" may have been meant to imply that
someone's negative right might be balanced against another copyright
owner's positive right - a concept that I do not believe is applicable
to US copyright rights.

-- Scott

-----Original Message-----
From: Arien Ferrell [mailto:Arien.Ferrell at Sun.COM] 
Sent: Monday, February 09, 2004 2:27 PM
Cc: license-discuss at opensource.org
Subject: Re: The Copyright Act preempts the GPL


The hypo proposed doesn't appear to clear up the core misunderstanding, 
as it introduces additional complication.

In that hypo, Scott claims that "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."  However, this is in the 
context of litigation - Alice is asserting that Bob does not have the 
right to copy, for whatever reason.  Because Bob's right is in question,

it does him no good.

Let's clean up the hypo a bit to get some clarity on Scott's position, 
that a copyright does not grant someone the right to make a copy. (I 
quickly researched the definition of 'affirmative right' and the courts 
provide no guidance (I'd be interested in someone else's results).  Only

a google search turned up the text which Scott posted earlier, about an 
affirmative right being a right delineated in the Bill of Rights.)

The Hypo: Bob wrote the book "Cryptography For Idiots", applying for and

receiving a copyright.  Bob wants to make and distribute copies.  No one

questions that Bob exclusively created and owns the copyright to CFI, 
and there is no one with rights in the work superior to those of Bob. 
What is the result when Bob copies?  If he can't do this as a matter of 
right, then someone apparently must exist with a cause of action against

Bob.  Who is this entity, and what is the cause of action?

Also, someone cited patent law to show that only a negative right 
exists...could you point me to the statute that contains the cited text?

  Thank you!!






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


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