Can abandonment be irrevocable?

[Ken Brown]

Peter,

Thanks for this.  I have to tell you that you are really onto an
interesting point.  I am not a lawyer, but I believe that there are some
legal points here that are probably unprecedented.    

I believe this particularly because the GPL has not been interpreted on
any of these topics by a court in the U.S. or elsewhere.  The SCO case I
believe will bring more clarity to the implications.  To date however,
there has not been a court issued delineation between the finality of
donating your work vs. changing your mind and asking for your donated
property back from the "community".    

Briefly, my basic understanding of copyleft is that the rights to what
you contribute reverse to property of the community/public domain.  This
is a problem because the community is a non-entity.  There isn't legal
precedent for a non-entity to defend ownership of anything.  The
agreement becomes enforceable only to the extent that another user that
agreed to the same license and using your donated property (in the
community) would like to challenge your insistence that you "own" the
property.  

Nevertheless, your point is interesting. The Micro-Star decision
specifies that their needs to be a clear intention to abandon that
right.  But that word is kind of vague to me and could go both ways.  I
believe we are going to have to wait and see if a "giver" challenges the
irrevocability of their gifts to the public domain.  Jury's seem to very
lenient when it comes to  reasonability standards.  Indefinite donations
to a non-entity I believe could easily become a "reasonability"
question.       

kb


-----Original Message-----
From: Peter Fairbrother [mailto:zenadsl6186 at zen.co.uk] 
Sent: Tuesday, August 12, 2003 1:25 PM
To: license-discuss at opensource.org
Subject: Can abandonment be irrevocable?

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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