For Approval: Microsoft Permissive License

[Philippe Verdy]

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.

Thanks for this clear legal reference (I think you can find the same
argument within the International Convention of Bern, and any other national
law implementing it).

Note that exclusive rights include the moral rights (that exist for authors
residing in some countries under Civil Code instead of Common Law) : in some
countries, they are not even transferable (and remain exclusive for the
lifetime of the author), so they are automatically excluded from any
licences, including after transfer of copyright (the copyright does not
cover the moral rights anyway).

This also means that they are also excluded from sublicencing, but also that
the required attribution is even better protected legally than the copyright
itself : even if the copyright is transferred, the law mandates the
preservation of author names in the modified copyright notice.

Other exclusive rights (and obligation) that are not transferable (and
excluded from the copyright protection and every licencing scheme) also
include the legal responsibility of authors for some damage they could cause
to others when making the covered work accessible to the public through his
publication (so for example, an author remains legally liable in his country
of residence if he publishes a covered work in any place in any combination
that is forbidden in the laws of his country of residence, like: apology of
Nazism or nationally recognized crimes against humanity, or public calls for
violence, murders, other crimes, or terrorism against physical persons or
legally protected institutions, or some national defence secrets of his
country of residence).

This mandatory legal prohibition, which can be very broad means that, to
protect the authors themselves, they need to publish their names, and names
can't be changed (this means that publishing works into the public domain
can then become legally prohibited during the life of authors themselves,
because public domain is not a licence but does not allow protecting authors
for forbidden uses for which an author may be legally liable in his country,
as this type of publication would be an illegal attempt by an author to
escape his own legal and mandatory responsibility and liability).