The Copyright Act supports the GPL

[Russell McOrmond]

(Changing subject line -- I don't want to be seen as agreeing with the 
old one ;-)

On Wed, 28 Jan 2004, daniel wallace wrote:

> >  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.
> 
> When you impose a "condition" on another person's exclusive legal
> rights you are asking that person to wave a legal right.


  It is not a legal right to be able to create a derivative work without
permission of the copyright holder, nor is it a legal right to distribute
a work without the permission of the copyright holder.


  If I take a Hollywood movie, create a laugh track where I think
something funny happened, it is not my right to distribute the new
combined work.

  I still have copyright on my own laugh track, and I can
license/distribute that laugh track in (almost - see Note 1) any way I
want, but I was not magically granted any rights against the original
movie by creating this laugh track.  If this new movie that is a
combination of my work (the laugh track) and the Hollywood work (the
original movie) is to be distributed it will only be under license
conditions that *BOTH* the original copyright holder and I agree to.

  In the case of "commons-based peer production" (Free/Libre and Open
Source Software, whatever you want to call it) we skip all the expensive
lawyers negotiating this agreement, and instead just stick to compatible
licensing.  This accomplishes the same goal of being able to distribute
the combined work, but without all that legal expense.


  There is nothing magical or opposed to the Copyright Acts here (I live
in Canada and our act is different than yours).  It is just a novel way of
utilizing the rights already expressed in the copyright act to seek
material rewards from our works in ways other than monopoly-rent-seeking.  
These are ways which facilitate much faster creation/innovation without
all the expensive lawyers, vulture capitalists and other middle-men
slowing things down.

  Please don't fall for the SCO/IBM/Microsoft FUD on this topic.  Their
interests are not our interests, and each has reasons for wanting people
to be distracted by arguments suggesting that Open Source is somehow
incompatible with copyright.

  Be very careful quoting IBM as representing Open Source views or the
Open Source legal interpretation of licenses as they have interests very
different than that of the Open Source community.  An enemy of an enemy is
not necessarily a friend.  Whether IBM or SCO win that case is not of
concern, but having the law side with either of them in their desire to
infringe our creative rights is a great concern.


---cut---
Note 1:

  In countries that fully recognize moral rights in copyright like Canada,
the copyright holder may be able to stop you from independently
commercializing your laugh track.  If customers combine the two in their
homes it may be seen as damaging of the integrity of their work.  This is
an unlikely situation given the lack of reward the copyright holder would
get for doing this (it would cause them more harm than good), but the
legal instruments to do that are there.

To see an example of a Canadian moral rights case, see: Galerie d'Art du
Petit-Champlain v. Theberge, (2002) SCC 34
http://www.google.ca/search?q=Theberge+OR+Th%E9berge+site%3Adigital-copyright.ca

Law student Jason Young wrote:
    I would agree with the SCC's narrow reading of s. 28.2(1) of the Act
    in Theberge: "the important feature of moral rights in the present
    statute is that the integrity of the work is infringed only if the
    work is modified to the prejudice of the honour or reputation of the
    author"

---
 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