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<div class="moz-cite-prefix">On 5/14/2020 12:24 PM, Langley, Stuart
wrote:<br>
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<div>Pamela Chestek wrote:</div>
<div> </div>
<div><i>></i><i>You're right, I was only thinking about
economic rights (my US bias is</i></div>
<div><i>></i><i>showing), but the question is still the
same, which is why the clear</i></div>
<div><i>>s</i><i>tatement of the author's intentions would
not defeat any claim of</i></div>
<div><i>></i><i>wrongdoing no matter what the legal theory
is.</i></div>
<div> </div>
<div><i>></i><i>But many, many licenses don't address moral
rights, so I'm not sure why</i></div>
<div><i>></i><i>this one is more problematic - other than
Thorton's premise that the</i></div>
<div><i>></i><i>license language is somehow entirely
ineffective, making this situation</i></div>
<div><i>></i><i>different.</i></div>
<div> </div>
<div> </div>
<div>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. </div>
<div> </div>
<div>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.</div>
<div> </div>
</span></font></blockquote>
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.<br>
<br>
Pam<br>
<br>
Pamela S. Chestek<br>
Chestek Legal<br>
PO Box 2492<br>
Raleigh, NC 27602<br>
919-800-8033<br>
<a class="moz-txt-link-abbreviated" href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a><br>
<a class="moz-txt-link-abbreviated" href="http://www.chesteklegal.com">www.chesteklegal.com</a><br>
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