Wendy Seltzer wendy at
Thu Oct 24 18:42:17 UTC 2002

This is part of the reason why describing "intellectual property" as 
"property" often obscures more than it clarifies.   Copyright is not a car 
or a plot of land; it is a bundle of exclusive rights of the copyright 
owner: reproduction, distribution, creation of derivative works, and for 
some works, public performance, public display, and digital 
transmission.  The copyright owner can choose whether to exercise or permit 
others to exercise any or all of those rights.

A copyright holder who licenses his work under the GPL permits others to 
use some of those rights, provided they follow the conditions of the 
license.  He releases some of the exclusivity, in return for other values 
he finds meaningful.   The copyright owner retains the right to exclude 
users who don't follow the license's terms, for example, if they try to 
distribute derived binaries without source code.  He also retains the right 
to distribute or license to others on entirely different terms.

Unless an owner dedicates a work to the public domain, releasing all 
exclusivity, the retained rights are "copyright."  Instead of viewing this 
divisibility as a limitation, one might see it as allowing an author 
greater freedom:   Each author has the option to release work to the 
public, to permit others to study and modify it, _without_  giving up all 
rights or all control.


At 02:04 PM 10/24/02 -0400, Ken Brown wrote:
>Thanks for your reply.  Let me be clear.  There is a big difference between
>saying that I have a copyright, which is  intellectual property ...with
>legal enforceable rights, and saying that I have a copyright but I choose
>not to enforce it vs. I have a copyright, but I choose to put my material
>into a pool whose members have every right to retangle, untangle, rework and
>modify my work.
>This is particularly precarious when the GPL itself says that there is
>unmitigated circulation of the work which is completely opposite of the
>basic definition of copyright.  If you cannot control distribution or
>modification, you do not have "copyrights."   Noel, I put my code in the
>general public pool because I don't to make any money from it.  So I get
>credit...big deal.  Credit is entirely different from enforceable
>Ex:  I own a piece of property...but at anytime, anybody in the General
>Public can use it, dig it up, change it, etc.  How can you say I have
>ownership of the property?
>-----Original Message-----
>From: Humphreys, Noel [mailto:nhumphreys at]
>Sent: Thursday, October 24, 2002 1:38 PM
>To: 'Ken Brown'; John Cowan; Sujita Purushothaman
>Cc: license-discuss at
>Subject: RE: Copyright
>The GPL is designed to facilitate access, not to discourage "ownership."
>Someone owns the "property," and that someone is not the person who
>downloads the source code.  GPL-subject software permits wide access and
>retransmission, because the GPL permits it, not because the "property" lacks
>an owner.  If the downloading person turns out to be the owner, then the
>downloading person is at liberty to impose conditions on access to his
>retransmission.  The GPL works only because some upstream
>copyrightholder continues to "own" the copyrighted work that is distributed
>under the license.  Put differently, the downloading person remains subject
>to the limitations imposed by the GPL because there is a person with
>superior copyright ownership rights who, presumably, has the legal power to
>enforce the GPL's terms if the downloader tries to deal with that software
>in an unauthorized way.
>Noel D. Humphreys
>noelhumphreys at

Wendy Seltzer -- wendy at
w: (212) 715-7815  // f: (212) 715-8192 // m: (914) 374-0613
Associate, Kramer Levin Naftalis & Frankel LLP
Adjunct Professor, St. John's University School of Law
Fellow, Berkman Center for Internet & Society at Harvard Law School

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