Scope of copyright on derivative works

[dlw]

"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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