Wired Article on the GPL

W. Yip weng at yours.com
Thu Mar 30 12:43:12 UTC 2000

On Wed, 29 Mar 2000 19:47:29 -0800 (PST), Ken Arromdee <arromdee at rahul.net>
>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:

Having gone through the following, I still fail to see how FSF fits into
the picture. Was wired.com merely doing some publicity for FSF?

>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.

The above makes sense. *Imagine* Microsoft being bought by XXX company
tomorrow. You do not want to have your license to Windows being revoked
would you (really) ?

I would presume Mattel, being a big corp, will have the sense to get a
signature when they buy something.

>From what you have quoted, the USC 17 205 does *not* address the rub of the
GPL situation, which is about a recurring 'chain of licenses'. It is this
element involving unlimited distribution which Mattel aims to stop.

The USC 17 205 only seems to address the single license, from one
individual to another.

>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.

I think it safe to assume that in absence of a 'written instrument' a
license is exhausted by the act of copyright transfer. This is because,
without a 'written instrument' the license is almost certainly a bare
license - ie. plain permission. One cannot claim permission to an article
subsists even after ownership of the article has passed.

Again, when we superimpose UCITA mandating that every license is a
contract, then this becomes problemmatic, since a contractual license
cannot be plain permission.

I accept your point that the USC provision is silent on what happens in
absence of a signed contract. However, the odds would certainly weigh
against the GPL in such a case where Mattel is actively seeking to assert
its exclusive rights of copyright ownership.

>  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.

This might not be absurb because the initial copyright owner would be the
one who voluntarily chose this particular course of action (GPL), and so we
can argue he ought not be allowed to renege from it. OTOH, a purchaser,
particularly a bona fide one, may not know anything about the licenses
attached to a copyright which he is purchasing, and thus deserves
protection from copyright holders who may be dishonest.

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