A potential transfer problem

daniel wallace danw6144 at insightbb.com
Fri Mar 19 17:41:35 UTC 2004


Any code developer who releases FOSS code under an unsigned,
nonexclusive license retains the original copyright
ownership rights. If the code developer subsequently legally
transfers his copyrights to a new owner, the code released
under the license is no longer protected from infringement
claims by the new copyright owner.

TITLE 17 - COPYRIGHTS
CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER   
Sec. 205. Recordation of transfers and other documents.

(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.

Sec. 205 (e) states a sufficient condition for a
nonexclusive license to prevail. Is it a necessary
condition?

IF it is signed THEN it prevails (a sufficient condition),
but does...
IF it prevails THEN it is signed (a necessary condition)
hold true?

Here are the remarks from the anointed USC (section (e) is
formerly section (f)).

"... under subsection (f) of section 205, a nonexclusive
license in writing and signed, whether recorded or not,
would be valid against a later transfer, and would also
prevail as against a prior unrecorded transfer if taken
in good faith and without notice. Objections were raised
by motion picture producers, particularly to the
provision allowing unrecorded nonexclusive licenses to
prevail over subsequent transfers, on the ground that a
nonexclusive license can have drastic effects on the
value of a copyright. On the other hand, the
impracticalities and burdens that would accompany any
requirement of recordation of nonexclusive licenses    
outweigh the limited advantages of a statutory recordation
system for them."

As we have witnessed with the SCO debacle, any questions
concerning nonexclusive license and copyright transfers
should be examined in the short term so that any
enterprising mischief makers (read Microsoft) can be
neutralized.








--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3



More information about the License-discuss mailing list