Can abandonment be irrevocable?

[Peter Fairbrother]

Sorry to ~top-post, and not trim - but I think it's worthwhile in this case.

Mike Haisley wrote:

> I agree, placing it under an open source license is a much better
> alternative, "public domain" is really risky, the only time I have been
> able to find court evidence supporting "public domain" is for works
> created by government employees, on government time.

> Michael Haisley
> This Message is NOT Legal Advice.
> 
>> From: Lawrence E. Rosen [mailto:lrosen at rosenlaw.com]
>
>> Why on earth would you risk "abandonment" given the uncertainties you
>> highlighted, when you can get as much or more benefit by simply
>> licensing your work under an open source license?  Your questions are
>> interesting; perhaps someone will want to write a law review article
>> about the topic.  But in the meantime, there's no need to play mind
>> games.  Grant an irrevocable license.
> 
>> /Larry Rosen

I totally agree with both of you - I'm trying to convince some people,
including DJ Bernstein, _not_ to use abandonment, but to use a 2-clause BSD
licence instead.

The problem is that they seem to rely on abandonment, though it's a bit
confused - they also seem to think that a "PDD" (a "this is placed in the
Public Domain" Declaration) is equivalent to abandonment. Or that it
otherwise might mean something.

This wouldn't matter to me at all, except that some good code is being
"abandoned"; and I don't know if I can use it.

See the thread "Re: License questions" on sci.crypt for history; but it goes
wider than that. 

And perhaps you might like to re-read my first email, below; there are still
some implied unaswered questions therein. Such as "what will happen to OSI
licences when US Tit. 17 § 203/304(c) come into effect?" Can licences be
irrevocable in the US?

Would a waiver help there?

Here's an email from DJB:

---------

> Peter Fairbrother wrote:
>> The author has just "in effect waived" the right to enforcement - and
>> that waiver is revocable.
> 
> No. Abandonment is irrevocable. That's why the courts impose special
> requirements upon abandonment, such as the ``overt act'' test.
> 
>> As a sidenote, abandonment of copyright isn't a defense, and isn't even
>> possible, in many non-US jurisdictions.
> 
> I don't believe you. Cite a case.
> 
>> Copyright exists by statute until expiry
> 
> No. An abandoned copyright no longer exists. See, for example, Section
> 20.19 of the Ninth Circuit Manual of Model Civil Jury Instructions,
> which explain the conditions under which ``a copyright does not exist
> in the plaintiff's work because the plaintiff abandoned the copyright.''
> 
>> Copyright is a legal, as opposed to a natural or equitable right, and every
>> text on rights I have read says that legal rights cannot be abandoned.
> 
> No. When legislatures create rights, they _can_ go out of their way to
> prevent abandonment; but they almost never do.
> 
> ---D. J. Bernstein, Associate Professor, Department of Mathematics,
> Statistics, and Computer Science, University of Illinois at Chicago

----------

Anyone?

-- 
Peter Fairbrother






>> -----Original Message-----
>> From: Peter Fairbrother [mailto:zenadsl6186 at zen.co.uk]
>> Sent: Tuesday, August 12, 2003 8:53 PM
>> To: license-discuss at opensource.org
>> Subject: Can abandonment be irrevocable?
>> 
>> 
>> Resent, because it apparently didn't get through the first
>> time. Hope there is no double posting.
>> 
>> My first post. Not strictly about licences, but it shouldn't
>> be too OT.
>> 
>> Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998):
>> 
>> "It is well settled that rights gained under the Copyright
>> Act may be abandoned. But abandonment of a right must be
>> manifested by some overt act indicating an intention to
>> abandon that right. See Hampton v. Paramount Pictures Corp.,
>> 279 F.2d 100, 104 (9th Cir. 1960)."
>> 
>> The prime source of this idea is "Nimmer on Copyright"[1],
>> widely quoted in abandonment cases.
>> 
>> People, including DJ Bernstein, have relied on this as
>> evidence that a declaration of abandonment is a) effective b)
>> binding on heirs etc c) final and irrevocable and d) a good
>> way to "free" code.
>> 
>> 
>> My question is:
>> 
>> If someone wants to effectively "put code in the public
>> domain", and states that the code has been abandoned, or that
>> copyright in the code has been abandoned, can he or his heirs
>> in title later assert ownership, or (re-?) assert the copyright?
>> 
>> 
>> 
>> 
>> If so, presumably a party that had not already relied on the
>> abandonment would not be able to rely on it after he became
>> aware of the re-assertion.
>> 
>> And a person whose reliance after the assertion was no more
>> detrimental to him than being required to licence the code
>> would no longer be able to rely on the abandonment?
>> 
>> 
>> 
>> Does the author actually "lose" copyright by abandonment?
>> Lose ownership? Lose the copyright itself? If so, what
>> happens to it? Copyright exists by statute until expiry, so
>> afaict it can't just "disappear".
>> 
>> Copyright is a legal, as opposed to a natural or equitable
>> right, and every text on rights I have read says that legal
>> rights cannot be abandoned.
>> 
>> The defense of abandonment of copyright seems to either fly
>> in the face of that, or perhaps something else happens?
>> Nimmer says that what happens is that "The plaintiff's claim
>> of ownership is thereby countered.", but that does not
>> explain what happens to the author's ownership, or the
>> copyright itself.
>> 
>> Ianal, so I've probably missed something, like perhaps the
>> author loses the equitable right of ownership in the legal
>> rights under copyright - but that also seems to fly in the
>> face of the doctrine that a legal right cannot be abandoned.
>> 
>> Or perhaps abandonment is just a defence, and the copyright
>> or it's ownership isn't actually abandoned at all? That the
>> author has just in effect "waived" the right to enforcement?
>> 
>> Does a declaration of abandonment irrevocably "free" code?
>> 
>> Could a waiver do that? I'm thinking about the 35-40 yaer
>> rule here too.
>> 
>> This is US law, does anyone have any idea what happens in
>> other jurisdictions?
>> 
>> Help! I did manage to get the guy in question to BSD-style
>> licence, but others are still using "abandonment".
>> 
>> 
>> 
>> [1] §13.06 The Defense of Abandonment of Copyright
>> 
>>             Abandonment of the copyright by the plaintiff or
>> his predecessor in interest obviously constitutes an
>> effective defense in an infringement action. The plaintiff's
>> claim of ownership is thereby countered. Despite imprecise
>> usage in some of the cases, abandonment must be distinguished
>> from forfeiture of copyright. The latter may occur as a
>> consequence of publication without proper copyrignt notice3
>> and is effectuated by operation of law regardless of the
>> intent of the copyright owner.
>> 
>>             Abandonment occurs only if there is an intent by
>> the copyright proprietor to surrender rights in his work.
>> There is, moreover, strong authority holding that an overt
>> act evidencing such an intent is necessary to establish abandonment.
>> 
>> 
>> -- 
>> Peter Fairbrother

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