Daniel -- A copyright right is not an affirmative right to do something. It is a negative right. It is a right to prevent someone else from doing something. (This 'negative' characteristic is true of patent rights as well - they are also negative rights.)
A copyright holder does not have a right to make a copy. Rather, the copyright holder has the right to prevent others from making a copy. So, the interplay between the rights of author of an original work and the rights of the author of a derivative work interlock as follows: The author of the derivative work has the exclusive right to make copies of the derivative work. That means that they can prevent others from making copies of the derivative work. However, the author of the derivative work does not have the affirmative right to make copies of their derivative work. There may be various impediments to their ability to legally copy their own work. For example, their right to make copies is contingent on permission from the author of the original work (because the derivative work includes copyrightable content from the original; otherwise it would not be considered a derivative work). The copyright right of the author of the derivative work is not a right to make copies. Thus the logic in your analysis fails at the point of the second sentence of the following paragraph: "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." -- Scott -----Original Message----- From: daniel wallace [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 28, 2004 6:44 AM To: [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL > 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. After all, the right is "exclusive" and no one may impose a condition without that person's concious agreement to waive that right. "In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise." (Parsons on Contracts, 444.) "It is not essential in order to make out a good consideration for a promise to show that the promisor was benefited or the promisee injured; a waiver on the part of the latter of a legal right is sufficient." Louisa W. Hamer v. Franklin Sidway 124 N.Y. 538; 27 N.E. 256; 1891 N.Y. (Court of Appeals of New York). The unilateral permissions to which the FSF speaks are derived from patent case law. The theory says that in a restrictive license a patentee may impose any condition he wishes upon "his" reward of the right to exclude others. There's no privity requirement and no mutual exchange of obligations as in a contract. After all they are the patentee's rights alone. This principle has never been challenged What a bare license (unilateral permission) cannot do is place a restriction on "another's" mutually exclusive reward of rights. The authorization of a derivative work always creates a second mutually exclusive copyright in the modifying author's work. Patent law and bare license evolution never anticipated a derivative work. There is no such thing as a "derivative patent". 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. That's what IBM calls the GPL in the SCO v. IBM lawsuit. IBM's description is: "The Linux developers' public agreement to apply GPL terms expresses in a binding legal form the conscious public covenant that defines the open-source community -- a covenant that SCO itself supported as a Linux company for many years." IBM calls the GPL a "public covenant" which is another term for a "public trust". This is an attempt to overcome privity problems in the GPL. A "public trust" does not require privity. Both "binding legal forms" and "public trusts" use the common law of the states for enforcement. The new universal right of "copyleft" is left to state law enforcement and thus preemption by section 301 of the Copyright Act. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
