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

[Rjack]

Hyman Rosen wrote:
> 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 (<http://www.fsf.org/licensing/licenses/gpl.html>) 
> rights to third parties, as is their exclusive right.

Their exclusive rights to authorize are restricted to:

"§ 106. Exclusive rights in copyrighted works.

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:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission."

Do you see the phrase "... any of the following:" in the statute above
Hyman? The colon is followed by six numbered rights. Now which of
those six enumerated rights gives the copyright owner the exclusive
right to authorize third parties "to authorize"? You can dig your
heels in and deny "exclusive" means something other than exclusive --
just don't expect a federal judge to accept such nonsense.

> Once such perpetual grants have been made, there are no "takebacks"
>  except as defined by the author termination clause in 17 USC 203.

Who gives a rat's ass about source code that is immutable and can't
be copied, modified and distributed? 17 USC sec. 205(e) clearly states
the GPL license isn't "perpetual" since it's an *unsigned* license.

> This is clearly stated in 17 USC 205(e): 
> <http://www.copyright.gov/title17/92chap2.html> 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.
Huh? Might be? MIGHT BE???????????????????????????
> 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.

It's legal gibberish.

Sincerely,
Rjack