encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Rick Moen rick at linuxmafia.com
Tue Feb 12 07:15:17 UTC 2008

[David departed into private mail, which I'm going to assume was

Quoting David A. Temeles, Jr. (dtemeles at nvalaw.com):

> As for the moral rights issue (attribution requirement under Artistic
> License), Section 106(a) applies solely to works of visual art such as
> paintings, drawings, prints, sculpture and still photographic images
> (See, 17 USC 106(a) and 101.  Software is deemed a literary work.
> Therefore, Section 106(a) is not relevant.  

<blink>  Er, yes.  Sorry, I'd read that section of the Copyright Act far
too hastily, and indeed there is no explicit protection of author
attribution in the Copyright Act -- unlike the case with Australia,
EU jurisdictions, etc.  Turns out, this has been a bizarre point of US
law for quite a while, and the USSC, in Dastar v. Twentieth Century Fox
(2003), decided against allowing use of trademark law (false designation
of origin) for the same purpose.  My apologies for my error of not
noticing 106(a)'s severe scope limitation.

(Yes, I was aware that software is deemed a literary work.)

The Berne Convention (article 6bis) mandates protection of moral rights
for in-copyright works, but the US apparently has declined to enact any
at the level of copyright law, on the extremely shaky theory that
they're adequately covered in other applicable law.

Oddly enough, it looks like there's the beginnings of a general author
attribution right (beyond that for visual works in 17 U.S.C. 106(c),
which we have courtesy of the 1990 Visual Artists Rights Act), in 17
U.S.C. 1202, part of DMCA.  However, it applies only "copyright
management information" whose removal or alteration facilitates or
conceals copyright infringement.

This is not to say that infringed authors completely lack means of
redress (note that Novell brought a tort action for "slander of title"
under Utah state caselaw.  

David also addressed several other points, which I'll read carefully
when I have time (and yes, I was aware of equitable estoppel  ;->  ).
Meanwhile, my thanks to him for his time and trouble.

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