Your hypothetical is directly on point: "Bob goes to court and proves that by a transfer of copyright ownership, he is the copyright owner of _CfI_ and therefore has the right under Section 106 (a) to reproduce the copyrighted work. Surely this right is affirmative?"
That is precisely the right that I am pointing out that I have NOT seen exercised and for which I am aware of no basis in US law. I do not believe that a showing by Bob that he is the copyright owner would help him at all. For example, Alice may have a copyright in a different book, and Alice may be asserting that the book that Bob's been distributing infringes her rights in her book. Bob's acquisition of copyright ownership in the book that he's distributing does not help him in Alice's case against him. In other words, Bob's right to make copies of the copyrighted work that he owns does not do him any good in trying overcome this impediment to his copying. If what you mean by "transfer" is that Bob shows that the copyright ownership that Alice had asserted had really been transferred to Bob, then, of course Bob is off the hook (court will no longer support Alice's attempt to impede Bob's copying). But that result is because of Alice's LOSS of the relevant copyright, not because of Bob's gain. The same result would obtain even if Bob showed that Alice had transferred the asserted copyright to someone else (not to Bob). -- Scott -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, February 09, 2004 1:19 PM To: Peterson, Scott K (HP Legal) Cc: [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL Peterson, Scott K (HP Legal) scripsit: > - rights that are enumerated in the Bill of Rights, such as relating > to free speech; Well, very good. Let's take "free speech" and plug it into your explication of affirmative rights: > > If, when impeded in some way from undertaking one of the actions > > constituting free speech, a speaker could go to > > court and use the free speech rights to overcome the impediment - that > > would be an exercise of an affirmative right. But you cannot go to court and overcome the impediment that prevents you (to be maximally cliche-ridden) from shouting "Fire" in a crowded theatre. So it might be that you call a right "affirmative" if in *some* circumstances you can get a court to overcome a hindrance from exercising them. But then consider this hypo: Alice gets an T.R.O. (a "hindrance" par excellence) to prevent Bob from making copies of the book _Cryptography for Idiots_. Bob goes to court and proves that by a transfer of copyright ownership, he is the copyright owner of _CfI_ and therefore has the right under Section 106 (a) to reproduce the copyrighted work. Surely this right is affirmative? -- John Cowan http://www.ccil.org/~cowan [EMAIL PROTECTED] Please leave your values Check your assumptions. In fact, at the front desk. check your assumptions at the door. --sign in Paris hotel --Cordelia Vorkosigan -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
