Re: The Copyright Act preempts the GPL
Not sure if you saw this language in the text:
The aspects of a derivative work added by the derivative author are that
author's property, but the element drawn from the pre-existing work remains
on grant from the owner of the pre-existing work. See Russell v. Price, 612
F.2d 1123, 1128 (CA9 1979) (reaffirming "well-established doctrine that a
derivative copyright protects only the new material contained in the
derivative work, not the matter derived from the underlying work"), cert.
denied, 446 U.S. 952 (1980); see also Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539, 547 (1985) ("The copyright is limited to
those aspects of the work - termed `expression' - that display the stamp of
the author's originality"). So long as the pre-existing work remains out of
the public domain, its use is infringing if one who employs the work does
not have a valid license or assignment for use of the pre-existing work.
Russell v. Price, supra, at 1128 ("[E]stablished doctrine prevents
unauthorized copying or other infringing use of the underlying work or any
part of that work contained in the derivative product so long as the
underlying work itself remains copyrighted"). It is irrelevant whether the
pre-existing work is inseparably intertwined with the derivative work. See
Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (CA2 1976)
("[C]opyright in the underlying script survives intact despite the
incorporation of that work into a derivative work"). Indeed, the plain
language of 7 supports the view that the full force of the copyright in the
pre-existing work is preserved despite incorporation into the derivative
work. See 17 U.S.C. 7 (1976 ed.) (publication of the derivative work "shall
not affect the force or validity of [495 U.S. 207, 224] any subsisting
copyright upon the matter employed"); see also 17 U.S.C. 3 (1976 ed.)
(copyright protection of a work extends to "all matter therein in which
copyright is already subsisting, but without extending the duration or scope
of such copyright"). This well-settled rule also was made explicit in the
1976 Act:
"The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the pre-existing material." 17
U.S.C. 103(b).
and
The plain language of the termination provision itself indicates that
Congress assumed that the owner of the pre-existing work possessed the right
to sue for infringement even after incorporation of the pre-existing work in
the derivative work.
"A derivative work prepared under authority of the grant before its
termination may continue to be utilized under the terms of the grant after
its termination, but this privilege does not extend to the preparation after
the termination of other derivative works based upon the copyrighted work
covered by the terminated grant." 304(c)(6)(A) (emphasis added).
Congress would not have stated explicitly in 304(c)(6)(A) that, at the end
of the renewal term, the owner of the rights in the pre-existing work may
not terminate use rights in existing derivative works unless Congress had
assumed that [495 U.S. 207, 227] the owner continued to hold the right to
sue for infringement even after incorporation of the pre-existing work into
the derivative work. Cf. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164
(1985) ( 304(c)(6)(A) "carves out an exception from the reversion of rights
that takes place when an author exercises his right to termination").
and
In this case, the grant of rights in the pre-existing work lapsed and,
therefore, the derivative work owners' rights to [495 U.S. 207, 236] use
those portions of the pre-existing work incorporated into the derivative
work expired. Thus, continued use would be infringing; whether the
derivative work may continue to be published is a matter of remedy, an issue
which is not before us. To say otherwise is to say that the derivative work
nullifies the "force" of the copyright in the "matter employed."
- Original Message -
From: "John Cowan" <[EMAIL PROTECTED]>
To: "Chloe Hoffman" <[EMAIL PROTECTED]>
Cc: <[EMAIL PROTECTED]>
Sent: Tuesday, February 17, 2004 12:16 AM
Subject: Re: The Copyright Act preempts the GPL
> Chloe Hoffman scripsit:
> > You may want to take a look at Stewart v. Abend.
> >
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=207
>
> An interesting case, but not really apropos, because the pre-1976
> copyright renewal scheme, like the corresponding termination provisions
> in post-1976 law, are specially intended to arrange for the rights to
> be recaptured by the author or his heirs.
>
> > This is not legal advice, etc.
>
> +1
>
> --
> After fixing the Y2K
Re: The Copyright Act preempts the GPL
Chloe Hoffman scripsit: > You may want to take a look at Stewart v. Abend. > http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=207 An interesting case, but not really apropos, because the pre-1976 copyright renewal scheme, like the corresponding termination provisions in post-1976 law, are specially intended to arrange for the rights to be recaptured by the author or his heirs. > This is not legal advice, etc. +1 -- After fixing the Y2K bug in an application: John Cowan WELCOME TO[EMAIL PROTECTED] DATE: MONDAK, JANUARK 1, 1900 http://www.ccil.org/~cowan -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: apache license 2.0 for consideration
Rodent of Unusual Size writes: > i don't think anyone has submitted it yet. the apache software > foundation approved version 2.0 of its licence, and would like to > submit it for osi approval. it's online at > > http://www.apache.org/licenses/LICENSE-2.0 > > and i'm attaching the text version to this message. > > it is our belief that this new licence is just as osi-compliant > as the 1.1 version, and is more clearly compatible with the gpl > to boot. If nobody else reviews this license, then the license approval committee will have to work without your input. As we're only human, we might make a mistake, and approve an Apache license which didn't comply with the OSD (cough, cough). But still, could somebody else take a gander at this? -- --My blog is at angry-economist.russnelson.com | Coding in Python Crynwr sells support for free software | PGPok | is like 521 Pleasant Valley Rd. | +1 315 268 1925 voice | sucking on sugar. Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | Sweet! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
[EMAIL PROTECTED] writes: > So Americans can ignore the civil-servant version of the NOSA license with > impunity, but not so Australians. Interesting ... so what happens if an American citizen takes public domain US Government software into Australia and starts redistributing it there? But I suppose that's a problem that the NOSA will fix, so at least for this discussion it's a moot point. -- --My blog is at angry-economist.russnelson.com | Coding in Python Crynwr sells support for free software | PGPok | is like 521 Pleasant Valley Rd. | +1 315 268 1925 voice | sucking on sugar. Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | Sweet! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Mon, 16 Feb 2004, Russell Nelson wrote: > Alex Rousskov writes: > >- If NASA wants to kindly ask users to register, license is > > not the right place to do that. NASA should change the > > license before OSI approves it (a simple quality control > > issue) > > On the other hand, if NASA wants to require redistributors to kindly > ask users to register, the license is the right place to do that. Agreed. For cases where NASA wants to _require_ something, see the other bullet in my original e-mail. I believe it applies just fine in the above case. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Alex Rousskov writes: > - If NASA wants to kindly ask users to register, license is >not the right place to do that. NASA should change the >license before OSI approves it (a simple quality control >issue) On the other hand, if NASA wants to require redistributors to kindly ask users to register, the license is the right place to do that. Consider that the GPL REQUIRES that an interactive startup of a program print out a certain bit of text. You cannot remove that code from the program without violating the GPL. NASA isn't requiring any fixed bits of code that cannot be changed. Requiring redistributors to ask is not unreasonable, and doesn't violate any part of the OSD that I can see. -- --My blog is at angry-economist.russnelson.com | Coding in Python Crynwr sells support for free software | PGPok | is like 521 Pleasant Valley Rd. | +1 315 268 1925 voice | sucking on sugar. Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | Sweet! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright Act preempts the wave theory of light
BSD Protector writes: > With all due respect, this mailing list is called: > "license-discuss". > > 1. GPL is a license. > 2. It is being discussed. 3. It is not a license under consideration for approval by OSI. Therefore ... it is off-topic for this mailing list. -- --My blog is at angry-economist.russnelson.com | Coding in Python Crynwr sells support for free software | PGPok | is like 521 Pleasant Valley Rd. | +1 315 268 1925 voice | sucking on sugar. Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | Sweet! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
