Fwd: The Copyright Act preempts the GPL

[Peter Fairbrother]

Wow, I have seldom seen hair sliced so thinly!

Caveat. I am not a US lawyer. I am not a lawyer at all. This is not 
legal advice.

>From: daniel wallace <danw6144 at insightbb.com>

>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.

Let's introduce a third character, "theDistributor".

The derivative work can't be distributed without consent of the first
author (and the second author too). "theDistributor" has to have 
those consents. Nobody else. The two authors don't have to agree 
about anything at all. Haircuts. The time of day. Who is President.

(Actually the work probably _can_ be distributed anyway, but if that 
violated their rights under copyright they could ask for injunctive 
relief to stop "theDistributor". Maybe not so likely in the US now, 
what with DMCA et al it might be a crime.)

They may have to agree somehow, somewhen about the creation of a 
derivative work, but that has nothing to do with distribution.

>The GPL purports to authorize the distribution of
>derivative works within its four corners.

It gives "theDistributor" the first author's consent for the 
derivative work to be published.

It also  _requires_ the second author to permit "theDistributor"
to freely distribute any derived work, as a condition of authorizing 
the creation of a derivative work etc.. Or at least that's how I 
remember it.

So both authors have given "theDistributor" permission to distribute the work.

That's all that's needed. There is _no_ requirement for an agreement 
between the authors in re distribution. There may be one in re 
creation of the derivative work, but that's another story.

>However you
>choose to describe the GPL... "contract", "license",
>"unilateral" or "bare"

A licence. A grant in deed.

Not a "contract", obviously - no consideration, no offer, no 
acceptance, a zillion other reasons too.

>  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.

Such an agreement would be one way to go about it - and I could
argue that that's what the GPL in fact does anyway - but it is not a
_requirement_ for distribution.


-- Peter Fairbrother
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