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Re: Red Hat pays $800,000 + costs for a patent deal

From: Tim Smith
Subject: Re: Red Hat pays $800,000 + costs for a patent deal
Date: Sat, 14 Jun 2008 20:13:11 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <JdU4k.4882$>,
 Linonut <linonut@bollsouth.nut> wrote:

> * rjack peremptorily fired off this memo:
> > Linonut wrote:
> >
> >>    The rights comprised in a copyright may be subdivided and
> >>    transferred. 17 U.S.C. 201(d)(2) ("Any of the exclusive rights
> >>    comprised in a copyright, including any subdivision of any of
> >>    the rights specified by section 106, may be transferred as
> >>    provided by clause (1) and owned separately."). In other words,
> >>    a copyright holder may transfer the right to duplicate to one
> >>    person, the right to distribute to another, and the right to
> >>    produce derivative works to yet another. See ITOFCA Inc. v.
> >>    MegaTrans Logistics, Inc., 322 F.3d 928, 929-30 (7th Cir.2003)
> >>    ("Making and selling are distinct rights and you can assign one
> >>    without the other."). 
> >> 
> >> Thanks for pointing me to that succinct validation of the methodology of
> >> the GPL.

You've confused a couple similar things, I'm afraid.  I will illustrate 
with an example.  I am the copyright owner on numerous works (as are all 
of us here, probably).  Let's say we have one particular work of mine, W.

I have, among other things, the exclusive right to make copies of that 
work and the exclusive right to distribute copies of that work.

You can I could execute a contract under which I give you permission to 
make and distribute copies.  If we do that, I have not *transferred* 
those rights to you.  I have given you a license that gives my 
permission for you to make and distribute copies, thus making your acts 
no longer a copyright violation.

If someone else comes along and starts making copies and distributing 
them, that doesn't legally concern you.  I'm the one who has to take 
action if the cad is to stopped.  (Of course, we might have in our 
contract that I promise to enforce my copyrights against third parties 
for your benefit...).

Or I could actually *transfer* the rights to you.  In effect, I would 
then have given you ownership of part of the copyright.  When that third 
party comes along and starts making and distributing copies, *you* could 
go after him, because I've transferred ownership or partial ownership of 
the copyright to you.

Pretty much every software license (including GPL) involves the first 
case.  You do not receive any ownership interest in the covered 
software.  You just receive permission from the copyright owner to do 
certain things that the law says you need permission to do if you are 
not the owner.

Think if it this way.  Suppose we have a building that contains a number 
of residential units.  The first case above corresponds to renting or 
leasing out those units.  The second case corresponds to turning the 
building into condominiums and selling off the individual units.

In software, a license like, say, a Microsoft license, is like the 
landlord letting us rent our units.  A free software license that is a 
contract (pretty much all of them except the GPL, assuming the attempt 
by the GPL authors to avoid contract works) is like a lifetime lease 
that has no ongoing fees, and a free software license that is just a 
bare license (what the GPL authors intend) is like...well, 
nothing really good comes to mind with the landlord analogy! :-)

> >
> > Uhhhh... 17 USC 201(d) begins:
> >
> > "Transfer of ownership.
> >      (1)
> >      The ownership of a copyright may be transferred in whole or in part 
> > by any means of conveyance or by operation of law, and may be bequeathed 
> > by will or pass as personal property by the applicable laws of intestate 
> > succession.
> >      (2)
> >      Any of the exclusive rights comprised in a copyright, including any 
> > subdivision of any of the rights specified by section 106 [17 USC 106], 
> > may be transferred as provided by clause (1) and owned separately. The 
> > owner of any particular exclusive right is entitled, to the extent of 
> > that right, to all of the protection and remedies accorded to the 
> > copyright owner by this title."
> >
> > Are you seriously suggesting that use of the GPL transfers ownership of 
> > the copyrights rights? Methinks more than the sky is falling.
> Why did you ignore the "subdivided" or "in part" part?
> Deliberate obfuscsation, or did you just not think it through?

He didn't ignore it.  He simply caught the distinction between 
transferring rights and licensing rights.

> Also, although I don't know this for sure, it would seem that you can
> transfer rights, and yet also keep them, in the same way that you can
> give out a copy of software, yet keep your own copy.

Sort of.  In the case of software licensing, as I've described above, 
you aren't transferring rights.

In the case where you really do transfer rights, you can indeed both 
transfer and keep them (or transfer them to more than one person).  
Copyright rights are similar to personal property.  People can jointly 
own items of personal property.  Heck, that ability is the basis of many 
good sitcom scripts, like when Rob Petrie and Jerry Helper jointly 
bought a boat on the Dick van Dyke Show, and hilarity ensued.  Or when 
Bart, Milhouse, and Martin pooled their resources to buy a copy of 
Radioactive Man #1 in episode 7F21 of The Simpsons, and again, hilarity 

--Tim Smith

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