[License-review] veto against Unlicence

Pamela Chestek pamela at chesteklegal.com
Fri May 15 12:46:23 UTC 2020

On 5/14/2020 12:24 PM, Langley, Stuart wrote:
> Pamela Chestek wrote:
> />//You're right, I was only thinking about economic rights (my US
> bias is/
> />//showing), but the question is still the same, which is why the clear/
> />s//tatement of the author's intentions would not defeat any claim of/
> />//wrongdoing no matter what the legal theory is./
> />//But many, many licenses don't address moral rights, so I'm not
> sure why/
> />//this one is more problematic - other than Thorton's premise that the/
> />//license language is somehow entirely ineffective, making this
> situation/
> />//different./
> As I understand it, and I don’t practice in Europe either, the
> difficulty with Germany is that the law prohibits assignments or
> complete transfer of copyright altogether. It is a “moral right” in
> the sense that it is possessed by the creator until death, then
> transfers to heirs.  France allows transfer of the copyright, but
> distinguishes the “moral rights”; the later are, like German
> copyright,  not transferrable at all.  The moral rights in France are
> relatively constrained such that there is minimal risk of harm to a
> subsequent owner however. 
> The issue this creates is that the author can’t make a valid transfer
> to the public domain.  Transfers are not allowed.  The author’s
> completely clear and unambiguous intent to transfer does not change
> that. The only option is to license sufficient rights.  Without a
> license, even if the author does not assert copyright, their heirs might.
Yes, but Thorston's objection is based purely on the premise that the
additional license language will be completely and utterly ignored by a
court, which is what I don't agree with and haven't seen any lawyer
ratify. If I wrote "I'm making a gift of my house in exchange for
$100,000," is a court going to say "no, no, no, you used the word
'gift,' so therefore the donee doesn't have to pay!" I don't think so, I
assume any court would recognize that the person using the word "gift"
didn't actually mean the word in its legal sense and would enforce the
agreement as a sale. I am waiting to hear from any lawyer in any
jurisdiction who says that a court will entirely ignore the clear intent
of the document, instead apply a legal definition, and then void the
document entirely because the clearly expressed intent of the grantor
wasn't consistent with the legal definition. I assume it is a universal
legal principle that courts are to try to ascertain as best they can,
and then enforce, the intention of the parties (the grantor in this
case), not ignore it completely. It's abundantly clear here what the
grantor intends.


Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
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