The Copyright Act preempts the GPL

[Ken Brown]

I think Daniel makes an interesting point.  But let me ask since you
emailed me your conversations.  Who is the original owner of Linux?  

kb

-----Original Message-----
From: jcowan at reutershealth.com [mailto:jcowan at reutershealth.com] 
Sent: Wednesday, January 28, 2004 1:23 PM
To: daniel wallace
Cc: license-discuss at opensource.org
Subject: Re: The Copyright Act preempts the GPL

daniel wallace scripsit:

> When you impose a "condition" on another person's exclusive legal
> rights you are asking that person to wave a legal right. After all,
> the right is "exclusive" and no one may impose a condition without
> that person's concious agreement to waive that right.

Very good.  But the maker of the derivative work is in no position to
attack the GPL, for absent the GPL he has no license to the original
work at all.  At best, as I said, he could claim that the original owner
is estopped from changing from the GPL to a more restrictive license or
withdrawing it altogether, at least as regards his rights.  Which is a
Good Thing.

> In order
> to secure the modifying author's permission to distribute his work in
the
> derivative copyright work, a "binding legal form" must be implimented.


You said that before, but as far as I can see there is no warrant for
it.
The right to distribute (as opposed to the right to create) derivative
works is not one of the enumerated exclusive rights; it belongs fully to
the (licensed) creator of the derivative work.

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