Re: [!NEWS] The GNUtards Must Be Crazy

[Rjack]

Hyman Rosen wrote:
> Rjack wrote:
> > 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.
>
> Oh, good lord. So that's what you've been getting on about. What
>  a magnificent piece of crankitude. OK, I finally understand. 
> You're wrong, of course, but at least now I see why you keep 
> pointing at preemption as if it means something. I anxiously 
> await the sober judge who will see things your way.

Take a look at a sober three judge panel in a famous case who saw
things my way:

"A copyright is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as they
please, so contracts do not create "exclusive rights.
...
Like the Supreme Court in Wolens, we think it prudent to refrain
from adopting a rule that anything with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee.
...
But whether a particular license is generous or restrictive, a
simple two-party contract is not"equivalent to any of the exclusive
rights within the general scope of copyright" and therefore may be
enforced."

http://floridalawfirm.com/procdinc.html

At the heart of the preemption discussion was the fact that a right
"in rem" is a right against the world and is *equivalent* to
copyright laws. Conversely a right created by contract (called "in
personam") binds only the parties in privity.

See:

"A right in personam means a right available against
a determinate individual or determinate individuals. All
contractual rights, as well as some others, fall thereunder. A
right in rem means a right available against persons generally,
or, as frequently expressed, against the world at large. All the
rights that come within the branch of law designated Torts fall
within this category."; Modern American Law (Law of Torts).

My prior post:

"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."

This is at the very heart of 17 USC 301(a) where Congress was
saying "We alone write *public* (in rem) copyright law". The GPL
attempts to create a new public law (in rem) governing the
distribution of derivative works.

Here is the complete Copyright Act:

http://www.copyright.gov/title17/circ92.pdf

Search it and you will find no provision for the *distribution*
of a derivative work (some folks confuse distribution with sec.
106(2) which controls *preparation* of a derivative work). Congress
left *distribution* to copyright holders in privity of contract.

Sincerely,
Rjack :)