Re: [!NEWS] The GNUtards Must Be Crazy

[Rjack]

Hyman Rosen wrote:
> Rjack wrote:
> > No distribution of a derivative work is possible WITHOUT 
> > **BOTH** AUTHORS CONTRACTUAL AGREEMENT. This "simply means" 
> > that the preexisting GPL author demands control of the 
> > modifying authors copyrights
>
> Distribution of the combined work is only possible under the 
> combined licenses (not necessarily contractual agreements) of all
>  the rights holders.

Ummm... " a license is not a contract"? Do they call you Eben Jr.?


> The GPL rights holders demand that the work as a whole be 
> distributed under the GPL.

That's right!!!

> The author of the additional elements retains full copyright in 
> those elements, and may do with them as he wishes, but if he 
> wishes to distribute the combined work, he may only do so under 
> the GPL.



I agree -- as long as the agreement is in privity that's no problem.
That's good contract law.

The problem is the requirement that the source code AGAIN be
licensed "to all third parties under the terms of this license"
sec. 2(b). This is the equivalent of an "in rem" right and not
a contractual right "in persona". This is forbidden by 17 USC sec.
301(a). YOU CAN'T DO THAT HYMAN!!! It's the equivalent of a new
copyright law.

> You may persist in your belief that this is somehow illegal, but
>  you are incorrect.
>
> > This violates 17 USC sec. 301(a) which you obviously do not 
> > understand (and probably have never read).
>
> Just incredible. Preemption has nothing to do with the GPL. In 
> full: (a) On and after January 1, 1978, all legal or equitable 
> rights that are equivalent to any of the exclusive rights within 
> the general scope of copyright as specified by section 106 in 
> works of authorship that are fixed in a tangible medium of 
> expression and come within the subject matter of copyright as 
> specified by sections 102 and 103, whether created before or 
> after that date and whether published or unpublished, are 
> governed exclusively by this title. Thereafter, no person is 
> entitled to any such right or equivalent right in any such work 
> under the common law or statutes of any State.

> It's just preemption. All copyright now comes only from this law.


Huh?

> The GPL is a copyright license. It is baffling how you construe 
> this to mean anything at all in the context of the GPL. It's as 
> if you believe chanting "17 USC sec. 301(a)" will magically 
> change your dross to gold.

Nope. It simply means you are in full blown denial. Why don't you
google [ copyright preemption equivalent "court of appeals" ] and
read a few of those 15,000 hits so that you might understand why
Congress stated in HR 94-1976:

"The intention of section 301 is to preempt and abolish any rights
under the common law or statutes of a State that are equivalent to
copyright and that extend to works coming within the scope of the
Federal copyright law. The declaration of this principle in section
301 is intended to be stated in the clearest and most unequivocal
language possible, so as to foreclose any conceivable
misinterpretation of its unqualified intention that Congress shall
act preemptively, and to avoid the development of any vague
borderline areas between State and Federal protection."

http://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476)

The GPL attempts in sec. 2(b) to regulate the distribution of
derivative works "in rem" with a contract -- which is equivalent to
formulating a new copyright law under state common law.

Of course you can just ignore the above and remain in total denial.

Sincerely,
Rjack :)

-- GNU fans never lose, they just moooooooooooove the goalposts. --