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

From: Hyman Rosen
Subject: Re: Effect of transfer of copyright on free software licenses?
Date: Tue, 21 Jul 2009 12:57:24 -0400
User-agent: Thunderbird (Windows/20090605)

Rjack wrote:
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following: ... "

Of course. And that is the case when copyright owners use the GPL
to distribute their works. They grant non-exclusive, irrevocable,
and perpetual (<>)
rights to third parties, as is their exclusive right. Once such
perpetual grants have been made, there are no "takebacks" except
as defined by the author termination clause in 17 USC 203.

This is clearly stated in 17 USC 205(e):
    e) Priority between Conflicting Transfer of Ownership and
       Nonexclusive License. — 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 if
      (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 it.

So a new owner has no power over preexisting non-exclusive licenses
regardless of his newly acquired exclusive rights. The sticking point
in the case of open licenses might be the lack of a signed written
instrument. But given industry practice and the clear intent of the
copyright holder when distributing his content along with a license,
a court could very well agree that the signature requirement is not
binding under these circumstances.

A second sticking point in the case of the GPL might be the notion
that recipients of copies gain a license grant from the copyright
holder, and so a new holder might deny such licenses. I have no idea
how this would work out - I don't even know if the concept itself
has any actual legal meaning.

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