Automatic GPL termination

John Cowan cowan at ccil.org
Mon Sep 3 16:42:06 UTC 2007


dlw scripsit:

> A favorite claim of GPL fans is that violation of a contractual term 
> automatically terminates the rights granted under the GPL. If you file 
> in a federal court with an infringement claim concerning the GPL because 
> of an "automatic" termination (the legal term is rescission) of a 
> copyright license the first inquiry for the court is whether there was 
> in fact a rescission of the copyright contract:

Rescission of a contract is not the same as termination of a license.
One effect of rescinding a contract *might be* terminating an associated
license, but the GPLv2 can be terminated arbitrarily by the licensor,
(subject to possible limitations in the nature of equitable estoppel,
which at most would apply only retrospectively, not prospectively).
That being so, it is easy to see that the licensor can announce in
advance that the license will be terminated if given conditions apply.

> "Because Santa Rosa seeks rescission of his contract, if we were to 
> grant him the relief that he sought, we would be required to determine 
> his ownership rights by reference to the Copyright Act. In such a case, 
> there is little question that we would be merely determining whether 
> Santa Rosa was entitled to compensation because of "mere copying" or 
> "performance, distribution or display" of his recordings. _Data Gen. 
> Corp._, 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa 
> Rosa's rescission claim. Once it is determined that Santa Rosa's 
> rescission claim is preempted, his only remedy is a claim under the 
> Copyright Act, and "the court must then dismiss the [contract] claim for 
> failing to state a cause of action." _Briarpatch Ltd._ v. _Phoenix 
> Pictures, Inc._, 373 F.3d 296, 309 (2d Cir. 2004). Thus, we find no 
> error in the dismissal of Santa Rosa's rescission claim."

You have to read the whole decision, which is online at
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-2237.01A .
Santa Rosa's problems are twofold: he has a crappy lawyer and he
waited much too long.  If he had acted earlier to clearly establish his
ownership, then he could have sued directly for infringement, and pled the
material breach of the contract as reason for setting the license aside.
Unfortunately, he failed to get the ownership straightened out within
the statute of limitations, and now he is up the proverbial creek without
a paddle.

-- 
Babies are born as a result of the              John Cowan
mating between men and women, and most          http://www.ccil.org/~cowan
men and women enjoy mating.                     cowan at ccil.org
    --Isaac Asimov in Earth: Our Crowded Spaceship



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