The Copyright Act preempts the GPL

[daniel wallace]

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.

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.
 
The Copyright Act speaks no further to the subject of
the "distribution of derivative works". It is left to state
law to enforce the "bilaterally binding legal agreement"
required to secure both author's permissions to distribute
a derivative work.

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.

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. As argued above, the only
way this is possible is through a "bilateral legally binding
agreement" between the two mutually exclusive authors that
are present in a modified work.

There is no federal common law to enforce these "mutually
binding legal agreements between two authors" concerning
distribution of derivative works.

This requires enforcement under color of state authority.

The GPL purports to abolish privity concerns ad infinitum in a
succession of mutually binding agreements between authors.
The FSF calls this new legal creation "copyleft". The GPL
purports to restrict the exclusive rights of a whole
succession of original authors in a new "right against
the world"... not just two individuals in a mutual agreement.

Section 301 of the Copyright Act preempts any such creation
of "new rights" in copyright law under the color of state
authority.

I feel confident the GPL will be ruled to be preempted because
of the concerns expressed above.


 

 





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