For Approval: Microsoft Permissive License

[Chris Travers]

On 9/16/07, dlw <danw6144 at insightbb.com> wrote:
>
>
>
> 17 USC § 106
> Subject to sections 107 through 122, the <OWNER> of copyright under this
> title has the <EXCLUSIVE> rights to do and to authorize any of the
> following: . . .
>
> 17 USC § 101
> A "transfer of copyright ownership" is an assignment, mortgage,
> exclusive license, or any other conveyance, alienation, or hypothecation
> of a copyright or of any of the exclusive rights comprised in a
> copyright, whether or not it is limited in time or place of effect, <NOT
> INCLUDING> a nonexclusive license.
>
> If your don't <OWN> the copyright you <CAN'T> license a work (§ 106).
> A nonexclusive licensee can't receive any <OWNERSHIP RIGHTS> (§ 101).
> So what is a "sublicense"? You can't license what you don't own.


Actually, according to the 9th circuit, exclusive rights are not
transferrable or sublicenseable either unless otherwise stated (IANAL, but
see Gardner v. Nike, a case which appears to have surprised a lot of lawyers
at the time).  It seems to me that the safe thing to do is to be skeptical
of *any* implied sublicense right.

Here is an example of a sublicense.  I write a book on, say Norse
Mythology.  The publisher gets an exclusive copyright license which includes
a sublicensing provision (avoiding questions of divisibility).  Later a
magazine wants to publish an excerpt from that book.  They contact the
publisher who provides a sublicense to the magazine.  If I, as the author
don't like it, tough luck.

A similar example might come into play if a second publisher wanted to
reprint the book after it was out of print.

My view here is that sublicensing does not enter into the BSD-license anyway
because it is a grant by the original author to anyone who comes into
posession of the software.  The fact that it is non-exclusive is more of a
supporting point than a primary one.

 Best Wishes,
Chris Travers
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