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Re: Effect of transfer of copyright on free software licenses?

From: Alexander Terekhov
Subject: Re: Effect of transfer of copyright on free software licenses?
Date: Mon, 20 Jul 2009 13:56:26 +0200

Tim Smith wrote:
> 205(e) is the problematical section, not 204(a).

"Simply because a friendly entity released a program under a license
does not mean that the friendly entity will continue to hold the
copyright in the future. In the well-known CyberPatrol case, the
defendants settled in part by transferring the offending program to a
hostile party. The hostile party immediately revoked the GPL license of
the program. Although non-lawyers on Slashdot opined that the revocation
was impossible, Free Software Foundation General Counsel Eben Moglen
privately admits that revocation is a problem, even for the GPL . (As a
general rule, licenses are revocable, and the GPL does not purport to be
perpetual.) His solution is to rely on 17 USC 205(e), which holds:

(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive
License.â€" A nonexclusive license, whether recorded or not, prevails
over a conflicting transfer of copyright ownership if the license is
evidenced by a written instrument signed by the owner of the rights
licensed or such owner's duly authorized agent, and ifâ€"(1) the license
was taken before execution of the transfer; or (2) the license was taken
in good faith before recordation of the transfer and without notice of

To do so, someone signs a license to a friendly party, like the FSF,
which, in his theory, preserves the GPL license to the world forever.
(He observes that under other federal law, this can be done
electronically, despite the language saying "written instrument
signed.") It is certainly possible that Eben Moglen's interpretation
would be upheld in court, but the case would be far from a slam-dunk,
especially in a case like CyberPatrol where the new copyright holder has
good reason to want the license revoked.

The problem with Eben Moglen's interpretation comes from the unique
construction of the GPL. The GPL purports to grant a new license from
the original grantor, rather than each succeeding author of a program
granting a sub-license to the next. By the very terms of the statute,
however, licenses from the original licensor are only protected if the
license was granted before executing the transfer. (New licenses from
the original licensor are not allowed, because the original licensor no
longer holds the copyright to the work.) Therefore, further distribution
of a GPL program is significantly limited after GPL is revoked. To be
precise, the current holders of the program are authorized to modify and
distribute the software, if they hold a "written instrument signed by
the [former] owner," but the recipients of the software may not further
redistribute it."

Man oh man, notice how GNU arch legal beagle Eben tries to turn 205(e)
on its head... LOL.

Here's more:

"Unless Jansson and Skala formally -- using paper and pen and a
signature -- signed their rights over to the Free Software Foundation,
Mattel may be able to sue over a potential copyright violation. 

The law requires "a written instrument signed by the owner of the rights

"This is one of the reasons why the Free Software Foundation strongly
urges authors of free software to assign their rights to FSF. It does
them no harm and it provides us with precisely the signed instrument,"
said Eben Moglen, FSF general counsel and a law professor at Columbia

"What has happened here is that these gentlemen [may have] left
themselves open ... because they made no signed assignment of their
rights under GPL to anybody," Moglen said. 

But, obscure portions of copyright law being obscure portions of
copyright law, there seems to be an even more arcane loophole. 

A programmer might be able to modify cphack and legally distribute the
substantially altered version as long as Mattel has not notified him of
the license change. 

"New works made pursuant to the license at the time before Mattel
[acquired rights to cphack] present Mattel with other difficulties,"
Moglen said. 

Eugene Volokh, a law professor at UCLA, said that Mattel might be able
to argue that the GPL is invalid because users don't pay for the free

"Nonexclusive licenses given for free are generally revocable, even if
they purport to be irrevocable," Volokh said. "Even if the GPL license
in cphack is treated as signed and is covered by 205(e), it might still
be revocable by Mattel as the new owners of the cphack copyright." 

"It is unfortunately not quite as solid a case for the good guys as the
GNU license theory would have at first led us to believe," he said."


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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