The Copyright Act preempts the GPL

[Rod Dixon]

Putting aside the issue that a 3 line computer program may lack the
minimal indicia of originality to be copyrightible in the first place,
strictly speaking, what Bob may do with his derivative work (if that one
line code is copyrightible) may depend upon whether Bob wants to
distribute the work or use it (internally). In other words, section 117
and section 107 may limit the reach of Alan's right to control the
distribution of derivative works. BTW, if you recall the courts' general
confusion and disagreement over how far you may take section 107 in the
video game cases, it becomes apparent that in some cases fair use is not
an insignificant matter. In addition, when you apply judicial
interpretations of derivative use, you begin to notice that the language
of the Copyright Act is a mere starting point. How judicial doctrine on
derivative use will be applied to software or other digital works is often
an open question (e.g., Tasini v. New York Times modifications of
collective work constituted new work, not derivative [revised] work).
Consequently, to prove that a derivative work is infringing, courts have
read into section 101 two general requirements: 1) the derivative work
must incorporate some of the original copyrighted work, and 2) the
infringing derivative work must be substantially similar to the original
copyrighted work.  To make these determinations, the court uses various
tests, including a test one poster mentioned earlier (abstraction etc.).

In my opinion, current judicial doctrine on derivative works - - in the
proof of infringement context - - lacks practical use for software
developers, but, as it stands, you cannot ignore it either. And, you may
not want to ignore judicial doctrine if you authored the derivative work
since the doctrine generally goes further than the words of the Copyright
to render some ostensibly derivative works non-infringing in my opinion.

Rod
rdixon at cyberspaces.org


On Sun, 8 Feb 2004, John Cowan wrote:

> Peter Fairbrother scripsit:
>
> > Alan writes an original computer program. It is 3 lines long. It is called
> > "Hello world".
> >
> > Bob takes Alan's program and replaces line 2. The new program is called
> > "Goodbye asshole".
> >
> > "Goodbye asshole" is a derivative work.
> >
> > If Bob did not have Alan's permission to create a derivative work then he
> > gets no rights at all.
>
> So far so good.
>
> > If Bob had Alan's permission to create a derivative work then he gets the
> > sole right to distribute line 2.
>
> He had that much even without Alan's permission, since line 2 is solely
> his work.  This paragraph belongs to me, though only with your (implied)
> permission can I use it in this email, which is a derivative work of
> your email.  (That is assuming that my use of your email is not a fair
> use, which I think it almost certainly is, but that's a different kettle
> of fish).
>
> > He does not get any right to distribute lines 1 and 3. He cannot distribute
> > "Goodbye asshole" including lines 1 and 3 without separate permission from
> > Alan.
>
> Once the derivative work is lawfully created, Bob is the copyright owner,
> and has all the exclusive rights of the copyright owner.
>
> And now I'm going to shut up, because obviously we are looping, and I'm
> not going to convince you nor vice versa.
>
> --
> "And it was said that ever after, if any                John Cowan
> man looked in that Stone, unless he had a               jcowan at reutershealth.com
> great strength of will to turn it to other              www.ccil.org/~cowan
> purpose, he saw only two aged hands withering           www.reutershealth.com
> in flame."   --"The Pyre of Denethor"
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3