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Example of "inalienable" copyright provisions in U.S. law and some other clarifications on Procedural Bars vs. Substantive Merits of Claims (long); was Re: [OT] Droit d'auteur vs. free software?

(My idea in participating in these debates is to provide
some areas to research assertions.  I will not express a
legal opinion on the fact specific issues.  I'm including
citations and snippets for people's reference, not to be
pedandic.  People have been saying that's very helpful but
let me know if you've already put me in your kill file...

 --- "Thomas Bushnell, BSG" <tb@becket.net> からのメッセ
> Arnoud Galactus Engelfriet <galactus@stack.nl>
> writes:
> We already have that concept.  "Ownership".  We even
> have an extra
> thing: "Copyright".  Both of these, under US law,
> are fully sufficient
> to prevent others from "mutilating" your work
> without your consent.  
> If you don't want it mutilated, don't sell it.  Or
> sell it subject to
> a contract that prevents unauthorized modification.
> The European system *forces* you to have such a
> "contract".

Would you agree that reliance on contractural bargaining
alone to protect artists interests can exhibit less than
desirable results?  I think it is a serious problem and
significantly related to the themes of "freedom" in
software licensing.

The U.S. copyright regime recognizes that artists are
often inexperienced or underskilled negotiators and that
the system needs to err on their side sometimes.  

An example that comes to mind is rights of
renewal/termination.  The law gives heirs the right to
terminate and renew (essentially a second bite at the
apple) but limits the circumstances.  Quirky decision, but
definitely recognizes that frequently artists get screwed
(especially early in their career) and then end up with
the $200 they got for selling their hit song that made the
copyright owner billions.

In fact you can't assign away your right to terminate--in
effect an "inalienable" U.S. copyright provision, eh.  See
17 U.S.C. Secs. 203(a)(5) & 304(c)(5).  Oh, here's the
legistlative record on the issue, H.R. Rep. No. 94-1476,
94th Cong., 2d Sess. 125 (1976).

Section  304(c) relates to a recovery of the a renewal
term and an opportunity to terminate a transfer (even if
they'd screwed up their first chance) and is discussed as
a "second bite at the termination apple" by commentators.

There's a very (inexpensive) good reference I recommend
that discusses, inter alia, this issue pretty consisely. 
Marshall Leaffer, Understanding Copyright Law, at 247
(1999).  You can find it on Amazon or at your library no

Fred Fisher Music, v. M. Witmark & Sons, 318 U.S. 643
(1943) is the big case in this area which is also
something to famiiarize yourself with to understand
termination of transfer and renewal rights (under the
pre-1976 Act anyway...)

Moreover, general economic analysis can support
inalienability of certain rights.  Right holders
undervaluing of long-term vs. short-term returns,
transactions costs, etc. could support a more public law
approach to rights of paternity or integrity.
> We have seen the claim that a change in the color of
> curtains
> constitutes a damage to honor or reputation.

Whether it's a claim is less relevant than whether there
are decisions supporting the view right?
> It's not too far to say that a change which
> implements a protocol the
> original author hated would be a damage to honor or
> reputation.  Or a
> change which alters the look and feel of an
> interface, given the heavy
> artistic content that really is a part of such
> things.

Well, the case law I've seen suggests that even the French
courts are reluctant to give authors too free rein on
defining their harms and intent.  The Courts seem to limit
claims by a "reasonableness" test which tends to curtail
the scope of potential claims.

In light of that, authors might discuss the content of a
reasonable statement of integrity and reputation for their
licenses.  An aspect might be what kind of reputation and
integrity interests FOSS authors share.

I wonder if the relevant *debian* integrity and reputation
concerns would turn on subsequent free works congruence
with the social contract and its notions of "freedom?"  

Existing precedent I've read suggests Courts give weight
to the relationship between claims and objective view of
author's interests, when interpreting moral rights
claims--whether proffered by an author or his

> > > No.  When property lands in the hands of heirs,
> they manage it however
> > > they want.  That's the way normal property does.

> > In the US view, copyrights are property rights.
> Author's rights 
> > are in the European view not property but natural
> rights. In some

That's an interesting assertion.  Moral rights are not
treated as property rights?  They are statutory rights

> > cases they are treated as property rights for
> reasons of
> > convenience. But you cannot argue using the law of
> property how
> > author's rights are treated.

How do moral rights jurisdictions treat the rights?  My
research suggests that Japan, UK, Germany, and France
treat them as property rights.

> I understand that.  My point is that author's rights
> are going to be
> interpreted by people after the author is dead, who,
> even if they are
> doing their very best, might get it wrong.  

Please remember, that whether things are inalienable *or*
perpetual varies by country.

> That's
> no harm to free
> software, except that the author is *prohibited*
> from relinquishing
> this right, and so the author *cannot* guarantee
> that his heirs and
> the court won't conclude that some change really
> does harm his honor.

Are you getting any gurantees even in the "Copyright"
context?  What happens if RIAA or MPAA all of sudden
becomes big licensers of works under some Open Content
license, and then start bringing frivilous claims about
their content?  Are you suggesting a particular license
would prevent that? 

You can sue (in some jurisdictions..) for spilling coffee
on yourself, Tom.. :)

> Even if you say "I hereby regard all changes as such
> things as cannot
> harm my honor and reputation", that's no good.  The
> whole point of the
> law is to prohibit author's from making such
> statements.

Again, at least under U.S. federal civil procedure all
that's required to get threw the gate into discovery is it
not violate the "Rule 11" requirement to have some
argument based on existing law or extension/modification
thereof.  If I want to argue so and so violated my
contract because they violated a term or such.. the
systems has setup certain filters along the way to check
the validity and merit of the claims.

At early stages the bar is pretty low...  Damn!  I spilled
coffee on myself again.. where's my pen..
> > Well, in first instance it would be the author who
> feels harmed
> > by the modification of course. He's the only one
> with standing
> > to sue. And then he has to convince the judge that
> it is really
> > harmful to him. So I guess there is some kind of
> objectivity
> > in the system, if you consider "what the judge
> thinks" to be
> > objective.
> Right, but the point is that the author
> can't--can't--can't promise
> not to sue.  A free software license is, at core,
> just such a
> promise.  But in Europe, the author can, at any
> time, rescind it, and
> say "you are violating my authors' rights".

As a general matter it's not that releasing software under
a given license doesn't prohibit *any* author from
bringing a claim--irregardless of the moral rights
question, but whether there are procedural rules for
filing a claim that are satisfied.  Whether one would
prevail is the separate issue of the merits of the claim.

> Since changing the color of curtains violates the
> rights of an
> architect, it's hard to imagine any significant
> change to any piece of
> software that would not wreak similar harm to "honor
> and reputation"
> if the author decided to complain: "That totally
> violates my original
> vision; it never occurred to me that anyone would so
> horribly damage
> my program", and bingo--license revoked.

Courts would consider the "reasonableness" of the claim
when they got to the merits though.  Is the person
complaining about something that is inconsistent.

When you're thinking about how a particular issue might
come down it's important to consider what the decisions of
courts in a given jurisdicition described, or what the
dominat treatises say for a Civil law context, and then
see if hte facts and reasoning line up with your concern.

What are the facts and reasoning of the curtain case, and
how might it fit you concern?  Where are the gaps in the
comparison?  Is there other case law that would fill in

> > > And if ten years after he dies, his heirs think
> something is
> > > defamatory, then they can sue, even if the
> author says "no changes to
> > > this work will count as defamatory", precisely
> because that statement
> > > by the author is an attempt to renounce
> something that *cannot* be
> > > renounced.

Well, again let's consider possible bars to "bringing a
claim" and how a court would rule on its merits
separately, ok?  In practice you can get rid of things
early in a litigation by dismissal/summary judgement or
after review by a fact-finder.

Parties can initiate claims by observing the rules. 
Procedural rules might punish them for bringing a
frivilous claim and otherwise dispose of it early in the
process, but in the U.S. we don't have a civil procedure
that says, "if you are a software developer of type X
please check this box, and do not file your claim."

> If the law means anything, it means that the author
> *cannot* renounce
> certain rights, one of them is the right to complain
> later.  Free
> software *depends* on the author promising "I won't
> complain later".
> These seem to be hopelessly contradictory.

Well, what *prevents* someone from bringing a claim? 
License terms may make it unlikely someone would prevail
on a claim, but be wary of the distinction.

> I have little objection to legal protection for
> contracts, and even
> things which swing the bar somewhat to make it
> "harder" for authors to
> renounce such rights.  But the notion that they
> *cannot* be renounced
> is ludicrous, and totally kills a jillion freedoms.

Would you concern be for perpetual or inalienable aspects?

In practice, there are plenty of Contract doctrines that
operated in violation of "contract freedom."  Courts can
step in to protect incompetent parties or stop bargains
with illegal subject matter.

For example, "I waive my rights to recision of this
illegal betting contract, and promise to pay even when a
court comes in and voids this contract.  Oh, and I agree
to transfer my husband as just consideration for the

> Again, it doesn't just kill free software.  It kills
> Marcel Duchamp
> too.  And what about the marvelous Berstein
> recording of Beethoven's
> 9th in Berlin after the wall fell?  That would be
> out under this
> regime, since Berstein changed Schiller's "Freude"
> to "Freiheit".
> Whoops!  Violating Schiller's poem, isn't that a
> violation of
> Schiller's rights?  And here Bernstein thought the
> concert was a
> testament to freedom, when actually it was a
> horrible degradation of
> Schiller.  Isn't something wrong with this?

Are you arguing a class of works whose authors have
disanalgous interests?  Suppose the original work was by a
Pomo composer who espoused the importance of encouraging
new works through vigorous and even offensive derivative

Assuming you get to be the Judge in a jurisdiction
adopting the "reasonableness test" for moral rights
claims, how would you weigh a claim by the Pomo composer
or his heirs objecting to an "offensive deriviative?"

James Miller

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