Wired Article on the GPL

Ken Arromdee arromdee at rahul.net
Thu Mar 30 03:47:29 UTC 2000

On Thu, 30 Mar 2000, W.Yip wrote:
> For my part, I do not understand how the question of assignment of rights
> to FSF fits into the picture. ( as reported in the wired.com article)
> Surely if J and S has assigned copyright to FSF, then it is impossible for
> them to contract with M at all? I wonder if M would have sought to buy the
> copyright from FSF in event there was such an assignment.

I didn't understand it either.  It seemed like Wired had made the mistake of
thinking that the GPL depends on copyright assignment to the FSF, and that if
the copyright is not assigned to the FSF, the GPL is not valid.  That's clearly
a bad argument.

But it turns out that that's not what they meant.  The Wired article is just
written poorly.  Someone on Slashdot quoted the actual law that they *were*
referring to:
USC 17 205 E

(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive
License. - A nonexclusive license, whether recorded or not, prevails over a
conflicting transfer of copyright ownership if the license is evidenced by a
written instrument signed by the owner of the rights licensed or such owner's
duly authorized agent, and if - 

(1) the license was taken before execution of the transfer; or 

(2) the license was taken in good faith before recordation of the transfer
and without notice of it. 
That *could* mean that if there is a signed contract, then the GPL takes
priority--and conversely, if there wasn't a signed contract, then Mattel's
ownership takes priority.

It's still a little strained to interpret it that way.  It doesn't say outright
what happens without a signed contract, so it might only mean that it doesn't
*automatically* prevail without one, not that it can't prevail at all.  Also,
if you interpret the law that way, you come up with the absurd conclusion that
the initial copyright owner might be unable to revoke the license, but if he
transfers the license to someone else that other party can do what he can't.

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