The Copyright Act supports the GPL

[Russell McOrmond]

On Wed, 28 Jan 2004 jcowan at reutershealth.com wrote:

> Russell McOrmond scripsit:
> 
> >   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.
> 
> Nobody disputes that.  But Daniel is claiming that if you *do* in fact have
> permission to create the movie + laugh track, that you *also* then need
> further permission to distribute it.


  There are two rights, and two situations that the GPL seeks to clarify.  
Granted the GPL could have used more clear language, but everything is
still consistent with copyright law.  The worries expressed in the
original subject line do not seem to exist.



  If you modify an existing work then you need to worry about permission
to create the derivative work.

  If you simply add to the existing then you need to get permission to
distribute the works "linked" together.

  There are two separate rights and situations, and the
permission/licensing is needed for both.


  In my movie analogy if I were to add a "movie review" to the end of the
movie I would still need to get permission to distribute the whole tape.  
In this case the permission needs to be granted by both the copyright
holder of the original movie and myself as copyright holder of the "movie
review" in order for this new tape to be distributed.  I can still license
and distribute my movie review separately if I wanted to, or never
distribute it at all, but if I wanted to "link" the two together (supply
them on the same tape, etc) then there needs tob e compatible permissions
from both copyright holders.


  In the case of Linux you already have several hundred copyright holders,
so talking about a single original copyright holder doesn't have much
meaning.  Any new code added needs to be licensed (at least) in a license
compatible with the licensing terms of *all* other contributors.  If you
were to violate the terms of those license agreements you would then be
violating the copyright of hundreds of copyright holders, any of which can
then sue you.


  This is part of the SCO case.  They want to distribute a version of
Linux under license terms that would violate the copyright of the hundreds
of copyright holders in Linux.
  http://www.flora.ca/copyright2003/section92.html#sco

  Whether or not they are a copyright holder to a portion of the Linux 
kernel is largely irrelevant to the question of whether they could legally 
distribute Linux under licensing terms incompatible with the permissions 
of all the other copyright holders.

  Whether SCO holds copyright on a "laugh track" (derivative work)  or a
"movie review" (linked work), or copyright on nothing at all, any attempt
to distribute the works of all these other copyright holders outside the
terms of a copyright permission is an infringement of the copyright of the
several hundred copyright holders to components of Linux.


----And just to make things that much more interesting .... ;-)

  The multiple-compatible-licenses
<http://www.fsf.org/licenses/license-list.html#GPLCompatibleLicenses>,
multiple contributors aspect of Linux makes things confusing.  If I wanted
to license my contributions (new code, not modifications to old code!) to
the Linux kernel under a BSD license I could do so.  The Linux project
could distribute my contribution as part of the whole "program" and, since
all licenses to all contributions are compatable, everything is fine.

  Then SCO comes along and wants to distribute their derivative of the
Linux kernel under a GPL incompatible license.  In this case the
contributions that were under the BSD license may not in fact have their
copyright infringed, only those who had contributed with licenses which
disallow derivatives to be licensed differently.  SCO is able to have a
GPL incompatible license that is still BSD compatible, infringing the
copyright of some copyright holders in Linux but not others.


  Analogies are great when there is only two copyright holders involved,
but real life is never as simple as an analogy ;-)

---
 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/

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