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ECT News Community   »   LinuxInsider Talkback   »   Re: Sticks, Stones and the GPL: Responding to Readers



Re: Sticks, Stones and the GPL: Responding to Readers
Posted by: Phil Albert 2004-08-10 08:20:56
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It's nice to know someone is reading my column. According to some of your letters, it seems my recent column on the GPL touched a nerve. To my critics who referred to me by names other than Phil, I can only respond with an equally mature "Same to you!" For those who prefer a more reasoned discussion, please allow me to devote this week's column to answering some of your criticism. For starters, this is an opinion column. It is based on my opinion as an intellectual property attorney with considerable experience.


Re: Sticks, Stones and the GPL: Responding to Readers
Posted by: gumout 2004-08-10 10:39:41 In reply to: Phil Albert
Section 106 of The Copyright Act says a copyright owner
may "do or authorize" six different activities:
Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of
copyright under this title has the exclusive rights to do
and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;
(3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer of
ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and
other audiovisual works, to perform the copyrighted work
publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work
publicly; and
(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.
Where in the six authorized activities does the word
"authorize" appear a second time? Which of the
six activities described above gives the copyright
owner the exclusive right to authorize another person
to further "authorize" [again] any activities?
The GPL is a nonexclusive license and cannot transfer
any NON-TANGIBLE copyright ownership rights.
Unless we can *distribute* our code to others, open
source software is a meaningless term.
A copyright owner can *distribute* copies (FIXED IN A
TANGIBLE MEDIUM) by:
a) sale or transfer of ownership
b) rental
c) lease
d) lending
That's it folks. There is no exclusive right to
nonexclusively sublicense your copyright in a "copyleft"
scheme, where every successor is bound by the terms of the
same license. The rules of statutory construction do not
allow for inserting extra terms. That is an attempt at writing
your own copyright law. This scheme cannot be enforced under
section 501 since it is not an "exclusive right" listed in
section 106.
This "copyleft scheme" *will* give rise to an implied
license through promissory estoppel.
With all due respect Mr. Albert, if you have "copylefted"
your code, it was an invalid attempt at licensing.
See Bobbs-Merrill Co. v. Straus, 210 U.S. 339 for the
statutory interpretation of the scope of the Copyright Act
with respect to the right to "distribute to the public"
(vend).
Daniel Wallace

Re: Sticks, Stones and the GPL: Responding to Readers
Posted by: terekhov 2004-08-10 11:19:21 In reply to: gumout
Copyleft is preempted by 17 USC 109.

Re: Sticks, Stones and the GPL: Responding to Readers
Posted by: gumout 2004-08-10 12:49:04 In reply to: terekhov
You are indeed correct.
Congress incorporated the principle announced in
the Bobbs-Merrill decision in 1908 into the
Copyright Act of 1976 as section 109.
It is informally known as the "first sale
doctrine". It limits copyright "copies" fixed in a
tangible medium to distribution to the public by
agreement in "privity".
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