The Copyright Act preempts the GPL

[John Cowan]

daniel wallace scripsit:

> Section 103 (b) of the Copyright Act says:
> "The copyright in a compilation or derivative work
> extends only to the material contributed by the author
> of such work, as distinguished from the preexisting
> material employed in the work, and does not imply any
> exclusive right in the preexisting material. The copyright
> in such work is independent of, and does not affect or
> enlarge the scope, duration, ownership, or subsistence of,
> any copyright protection in the preexisting material."
> 
> This says there exist two mutually exclusive copyrights
> in a derivative work. To distribute this work the agreement
> of both authors is required... the copyrights are "exclusive"
> and therefore disjoint. Whenever a derivative work is
> authorized, a second disjoint exclusive copyright is
> automatically awarded to the modifying author.

I entirely disagree (IANAL, TINLA) with your reading of the Act
here; you seem to be construing it to mean the exact reverse of
the plain meaning, which is that the creator B of the derivative
work b, provided he acted under license from the copyright owner A
of the original work a, has all the rights of a copyright owner.
It is B and only B whose permission is needed to distribute b.

> An original author can "unilaterally permit" (prepare) a
> derivative work" under section 106 (2)of the Copyright Act
> but cannot authorize "distribution" of that derivative work.

Very true, but that does not mean that the original author
must authorize jointly; the original author is not in it at all.

> How then, do you permit a derivative work to be distributed?
> This is usually done at the time the "preexisting" author
> authorizes the derivative work by way of a "contractual
> agreement" of some form with the "contributing" author.

Per contra, the contractual agreement is about the permission to create
the derivative work in the first place.  Note that the six exclusive
rights mentioned in S. 106 do not include authorizing the distribution
of derivative works, but only the preparation of them.

> The GPL purports to authorize the distribution of
> derivative works within its four corners. However you
> choose to describe the GPL... "contract", "license",
> "unilateral" or "bare" the GPL purports to grant permissions
> to distribute derivative works. 

It does not.  The GPL imposes a condition on anyone who wishes to
make a derivative work, viz. that the derivative work, if distributed
at all, be distributed under the conditions of the GPL and no others.

> The GPL purports to abolish privity concerns ad infinitum in a
> succession of mutually binding agreements between authors.

Privity is not abolished but bypassed, and not by agreement, but
by a condition imposed on the exercise of the license.

-- 
John Cowan  www.ccil.org/~cowan  jcowan at reutershealth.com  www.reutershealth.com
[P]olice in many lands are now complaining that local arrestees are insisting
on having their Miranda rights read to them, just like perps in American TV
cop shows.  When it's explained to them that they are in a different country,
where those rights do not exist, they become outraged.  --Neal Stephenson
--
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