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Re: GPL traitor !

From: Alexander Terekhov
Subject: Re: GPL traitor !
Date: Wed, 17 Jun 2009 15:07:05 +0200

Hyman Rosen wrote:

[... 17 USC 201(c) ...]

That section of the copyright act is utterly irrelevant in the GPL
context, silly.

Before the 1976 Act, there was much disagreement about the relationship
between copyright ownership in individual and collective works.(48)
According to the doctrine of indivisibility, many perceived copyright as
incapable of being divided into smaller rights and could only be secured
if copyright "notice" appeared in the name of the copyright owner.(49)
Thus, authors who granted rights to publish their articles were often in
grave risk of inadvertently losing their rights to publishers or
injecting their work into the public domain.(50) The doctrine weakened
in Goodis v. United Artists Television, Inc.,(51) holding that a
copyright in the name of a periodical provides protection to an author
where she has sold a right of first publication, and Congress abolished
this with the 1976 Act. 

To this end, Congress intended for section 201(c) to elucidate the
"relationship between copyright ownership in a contribution and in the
collective work in which it appears."(52) The first sentence of this
section merely reiterates section 103(b): "Copyright in each separate
contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution." With the second sentence of section 201(c), along with
the notice provision of section 404,(53) Congress meant to preserve the
author's copyright in an underlying work "even if the contribution does
not bear a separate notice in the author's name, and without requiring
any unqualified transfer of rights to the owner of the collective
work."(54) Under this section, if there is no express transfer of the
copyright or related rights, "the owner of copyright in the collective
work is presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective
work, any revision of that collective work, and any later collective
work in the same series."(55) The owner may not utilize the underlying
work for any purposes falling outside of this statutory description.
Falling short of explicitly defining "revision," the House Report
provides several examples of permissible and impermissible revisions: 

Under the language of this clause, a publishing company could reprint a
contribution from one issue in a later issue of its magazine, and could
reprint an article from a 1980 edition of an encyclopedia in a 1990
revision of it; the publisher could not revise the contribution itself
or include it in a new anthology or an entirely different magazine or
other collective work.(56) 

How the courts should interpret the language of section 201(c) in view
of the House Report is at the heart of the present inquiry. As a prelude
to addressing this question directly, this Note considers the following
hypothetical scenario and how it relates to the 1976 Act. 

C. A Hypothetical Case 

Infringement Press (I-Press) publishes the hardcover 1998 Anthology of
Contemporary Poetry comprised of poems written and copyrighted by living
poets. Shortly following publication, I-Press arranges for the sale of
the individual copies of poems through Kwik-Copy which simultaneously
offers the full collection in a binder format. Moreover, across the
heading of each copy reads, "From the 1998 Anthology of Contemporary
Poetry, Infringement Press, 1998, page 101, also available from
Kwik-Copy in full form." 

It is clear that I-Press, as owner of copyright in a collective work, is
authorized by section 201(c) to revise its anthology from a hardbound to
a binder version and market it through any legal means it sees fit. The
mere changing of a print format without altering content would fit
squarely within the statutory definition of revision. But presuming
there are no written assignments of copyrights in the poetry,
dismantling the anthology and selling the individual poems violates the
poets' section 106(1) exclusive right of reproduction. Under section
201(c), I-Press may only reproduce and distribute the contribution as
part of that particular collective work, any revision of it, or a later
collective work in the same series.(57) The photocopies cannot
individually be considered the particular collective work, revisions of
the anthology, or a later work in a series.(58) To the contrary, these
photocopy reprints violate the poets' copyrights in their contributions,
making I-Press vulnerable to an infringement suit based on a
straightforward reading of the 1976 Act. 

With this hypothetical as a backdrop, Parts III and IV focus on the two
leading cases which directly address the definition of revision under
section 201(c). Tasini v. New York Times originated as a 1997 district
court case and was reversed by the Second Circuit Court of Appeals in
late 1999. The case has attracted much attention because it addresses an
issue of first impression, and writers and publishers perceive that
there is much at stake. While not centrally addressing electronic media
per se, Ryan v. Carl Corp. offers an alternate view of the legislative
history of the 1976 Act and may predict a future split over section
201(c) interpretation akin to that seen previously in other areas of
copyright law.(59) 


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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