Public domain mistake?

[Russell McOrmond]

Note: IANAL, I just hang around with and enjoy conversations with lawyers
and law students.

On Tue, 27 Jan 2004, daniel wallace wrote:

> There are two copyright authors in a derivative work,
> the "preexisting" authorizing author and "modifying" author.
> In a "bare" license or unilateral permission, by
> definition the licensor may place no condition on
> another's disjoint reward of exclusive rights
> (or they wouldn't be "exclusive").

  Aren't we talking about possibly two different things here?

  There are different situations here: where the new work is a derivative
of existing code (you modifying someone else's work with their permission
and conditions)  and where there is new code being added to the collection
(linked) to form part of a larger "program" (where that linking and later
distribution of the whole "program" is done with permission and
conditions).

  When you wish your "new" work to be linked/compiled/etc together with
the existing work, the only way you have permission to do so is if you
offer that work in a compatible license.  What you authored is not itself
be a derivative work, but when it is added to the "program" the result is
a "derivative program".

  I don't think copyright law talks in terms of works under copyright, and
"programs" which are a "linking" together of many individual works under
copyright.  Even the term "compilation" and "collection" has a meaning in
copyright circles different than what we would be trying to talk about
here.

  I don't see how you loose any exclusive right if you wish to
link/compile/etc together your new code (your "work") with the existing
GPL licensed work(s).  You can license the same code in additional
licenses.  Some software projects have asked copyright holders to
"relicense" their work which really means offering existing copyright code
in yet another license as you cannot revoke any existing irrevocable
license.  The GPL just says (unfortunately not in as clear terms as we all
would like) that at least one of the licenses you offer must be a
worldwide, irrevocable license compatible with the GPL.



  One of the problems I find with the GPL is that it is written more like
a manifesto to explain why it exists rather than to use traditional
license terminology.  While this is great in explaining the principles of
the GNU project, it makes understanding it in connection with the laws and
case-law of any given country just that much harder.

> It is not possible to grant permission to "distribute
> modifications... provided that you also meet all of these
> conditions:..." without placing  conditions on the
> exclusive rights of the modifying author and it takes his
> legally binding permission to do so..
> 
> This result leads to enforcement of the GPL under state
> law. This ultimately leads to preemption of the GPL under
> sec. 301 because "copyleft" is a new "right against the
> world" as cited in ProCD, Inc. v. Zeidenberg, 86 F.3d 1447.

  This is something I wonder if it would be worth looking at a bit closer.  
I believe this is why Eben Moglen is so insistent that the GPL is a
copyright permission and not a contract.

  There are two different sets of permissions here: the permission to
modify an existing work (and related conditions), and the permission to
distribute the entire "program" (with or without additions, and under
related conditions). I don't think these different permissions come into
conflict.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3