Scope of copyright on derivative works
dlw
danw6144 at insightbb.com
Sat Sep 29 17:36:04 UTC 2007
"While I think that the argument that this is not a sublicense but
rather a license eminating directly from the licensor is the best way to
avoid questions of divisibly, I will also concede that Mr Rosen is
correct that it makes no practical difference as to what is allowed (it
may affect standing in infringement lawsuits however)"
What open source advocates need to understand is that a “sublicense”
matter concerning a nonexclusive license under US law is actually an
“assignment of contractual interests” (information rights) in an
existing copy of a license. A nonexclusive license cannot grant
ownership rights to a licensee (17 USC sec 101). This means a
nonexclusive licensee must have the permission of the copyright owner to
assign the licensee’s personal contractual rights. The original licensee
assigns (thereby relinquishing) his personal contractual interests in
the existing license to a *new* licensee.
SCO lawyer Mark Heise pointed out this fact to the Wall Street Journal
in 2004. Eben Moglen referred to 17 USC sec. 117 and ridiculed Heise’s
statement – although Heise never mentioned 17 USC sec. 117. [FN1]
A nonexclusive licensee cannot transfer the contractual interest he
receives under a copy of the GPL license to “all third parties” since he
relinquishes (transfers) his personal contractual interest to the first
new assignee. That’s why Mark Heise said copyright law allows only “one
copy” [of contractual rights]. The GPL’s sec. 2(b) when held to its
plain meaning poses an “impossible” performance requirement under
contract law. US copyright law also preempts sec. 2(b) because it
attempts to redefine settled US law governing assignments of copyrights.
Perhaps someday open source advocates will come to understand that for a
nonexclusive licensee the term “sublicense” means “assignment of
personal contractual interests” in a license and the term does *not*
mean “to authorize” found in 17 USC sec 106.
[FN1] A strategy often used by open source advocates is to falsely
attribute statements to critics and then invoke some legal principle
thereby impressively destroying a strawman they’ve created. Another
tactic is to repeatedly raise facetious legal claims without citation to
legal authority and when opposing legal authority is cited they quickly
launch an ad hominem attack to divert focus from the criticism.
.
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