The Copyright Act supports the GPL
(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
Re: The Copyright Act supports the GPL
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. I deny this. Once you have lawfully prepared your derivative work, you may distribute it on your own terms; what the GPL does is prevent your work from being licensed if you distribute it other than under the GPL, making the creation of the derivative work not lawful. -- John Cowan [EMAIL PROTECTED] www.ccil.org/~cowan www.reutershealth.com If I have seen farther than others, it is because I am surrounded by dwarves. --Murray Gell-Mann -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act supports the GPL
On Wed, 28 Jan 2004 [EMAIL PROTECTED] 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/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
