In referring to negative and affirmative rights, I am not attempting to invoke any magic words. I am merely offering a way of thinking about copyright rights. I offer the characterization (copyright as a negative right) because I find that it captures in a simple concept an analytical device that goes a long way in helping predict what the US copyright law does.
I find thinking about copyright as both a positive right and a negative right adds nothing to the analysis that more accurately predicts an outcome under US copyright law than does thinking of copyright as a purely negative right. The example in the message below is illustrative. Why inject "a matter of right"? The concept adds nothing. If there is no one with any copyright right by which they can prevent the person from making a copy, then the person can make a copy. If there is someone with such a copyright right, then the person cannot make a copy (whether they have some copyright right of their own doesn't enter into the analysis). There may be misunderstanding hidden in the phrase "rights in the work superior to those of Bob". "Superior" may have been meant to imply that someone's negative right might be balanced against another copyright owner's positive right - a concept that I do not believe is applicable to US copyright rights. -- Scott -----Original Message----- From: Arien Ferrell [mailto:[EMAIL PROTECTED] Sent: Monday, February 09, 2004 2:27 PM Cc: [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL The hypo proposed doesn't appear to clear up the core misunderstanding, as it introduces additional complication. In that hypo, Scott claims that "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." However, this is in the context of litigation - Alice is asserting that Bob does not have the right to copy, for whatever reason. Because Bob's right is in question, it does him no good. Let's clean up the hypo a bit to get some clarity on Scott's position, that a copyright does not grant someone the right to make a copy. (I quickly researched the definition of 'affirmative right' and the courts provide no guidance (I'd be interested in someone else's results). Only a google search turned up the text which Scott posted earlier, about an affirmative right being a right delineated in the Bill of Rights.) The Hypo: Bob wrote the book "Cryptography For Idiots", applying for and receiving a copyright. Bob wants to make and distribute copies. No one questions that Bob exclusively created and owns the copyright to CFI, and there is no one with rights in the work superior to those of Bob. What is the result when Bob copies? If he can't do this as a matter of right, then someone apparently must exist with a cause of action against Bob. Who is this entity, and what is the cause of action? Also, someone cited patent law to show that only a negative right exists...could you point me to the statute that contains the cited text? Thank you!! Peterson, Scott K (HP Legal) wrote: > 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? > -- 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
