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Re: Hypothetical situation to chew on

On Thu, 6 Jan 2005 09:54:54 +0100, Batist Paklons <batist@gmail.com> wrote:
> On Wed, 5 Jan 2005 22:03:44 -0500, Nathanael Nerode
> <neroden@twcny.rr.com> wrote:
> > Let me clarify.  :-)

Let me muddify.  :-)

> > I have few complaints with the treatment of material for which the authors
> > *claim* copyright.
> >
> > My complaint is about material distributed willy-nilly by its authors with
> > *no* copyright statements and *no* licensing information.  Clearly the
> > authors didn't intend "all rights reserved", but that's what current law
> > assumes.

Actually, if it's something like a patch to an existing work, offered
with the implicit understanding that it would be applied and become
part of the upstream, then at least two defenses are available if
copyright infringement is ever claimed: "de minimis" (especially with
regard to stuff that is almost purely functional, since it's only the
creative expression that's copyrightable) and implied license /
promissory estoppel.  The latter is evidently less available in civil
law countries, and probably couldn't be used in any jurisdiction to
claim that the maintainer has the authority to change license terms.

> > In contrast, pre-1986 (I think) US law specified that works published (==
> > deliberately distributed to the public by their authors) without a copyright
> > statement went into the public domain.

1976; but otherwise basically correct (IANAL).  See
http://www.publaw.com/1976.html for some of the consequences; if an
author limited the scope of the license under which a work was first
published (say, in a magazine), and the publisher failed to tag her
work with a copyright notice in her name (separated from the
publisher's copyright notice for the magazine as a whole), then it
would fall immediately into the public domain.

> > Note that this email message is subject to copyright, and can't legally be
> > reprinted without permission (except for fair use, such as quotation rights).
> > Under pre-1986 US law, it would be public domain, because I didn't affix a
> > copyright notice.

Most non-defamatory uses of your e-mail in the US would probably fall
under an implied license to redistribute and archive, since that's the
prevailing practice on public mailing lists.

> > This change has, frankly, made a freaking mess.  This is why projects have to
> > have statements like "By submitting a patch, you agree to license it to us
> > under (license of choice)".  Under the old law, submitting a patch of your
> > own authorship to a public bug tracking system would be publishing it, and if
> > you did so without a copyright notice -- public domain.

Having such a statement helps establish what the prevailing practice
is in a given forum, in order to reach an implied license; but
copyright assignment and grant of right to sub-license can't be found
without a binding written agreement, and "browse-wrap" won't cut it. 
That's one of the reasons that I disapprove of the FSF's claims that
the GPL is not a contract; accepting submissions to a GPL project
without obtaining good evidence at least of acceptance of the GPL is
not a good idea.

If you buy that "modifying" and creating a patch are strong evidence
of acceptance of an offer of contract under the GPL, then it's not so
bad -- as long as the license terms are unalterable.  But the GPL
lacks any language that would make the maintainer an agent of the
copyright holder for the purpose of issuing a license under new terms,
and I am rather skeptical even of the "version 2 or later" formula. 
The FSF recommends copyright assignment or release into the public
domain to all GPL licensors, and insists on it for GNU projects,
thereby dodging the question.

I haven't thought the equivalent through for, say, BSD (not a
contract, I think; a court might even call it release into the public
domain, since the Planetary Motion court went out of its way to say
that GPL release isn't) or MPL.  But ultimately, a work with several
copyright holders is -- and probably should be -- hard to relicense.

> As I understand US law (though my knowledge of it is just marginal),
> the publishing without copyright notice wouldn't make it public
> domain, but just not-enforceable. Very often in litigation, one would
> register an already (long before) published work, to be able to
> enforce it in the upcoming litigation.

Registration is a formality separate from copyright notice, and now
functions in the US primarily as an administrative determiner of
provenance to which a court can kick back a question of fact when a
person being sued for copyright infringement has plausible evidence
that the copyright is no good.  Nathanael had it right under the 1909
law -- no notice, no copyright.

> I am not sure about this, but as a defense (the 'no, I am not
> infringing your copyright'), it probably doesn't have to be registred,
> but to be sure you should ask a US lawyer.

Registration establishes a rebuttable presumption of who wrote it
when, and whether someone else owned it from the beginning under "work
for hire" provisions.  A defense based on "the registration is invalid
because it has the provenance facts wrong" is different from "what I
wrote doesn't contain more than de minimis portions of that source",
which is in turn different from "I relied on this license (written or
implied) when I made use of that copyright material".

In a preliminary injunction proceeding, the first two address
likelihood of success on the facts, and if a valid contract is found
when evaluating the third, it's on to an evaluation of the licensee's
performance of obligations and of the remedies available for breach of
contract, using standards like "cure of breach" and "balance of
harms".  When all of these defenses are exhausted -- the copyright is
valid and factually infringed, and no valid contract exists or the
copyright holder is within rights in rescinding the license --
criteria like "what I wrote is a protected fair use of that source"
come into play.  This defense is back in "likelihood of success"
territory, this time on a copyright infringement claim; when "success
on the facts" is likely and would constitute infringement, the
copyright holder is entitled to an automatic presumption of
irreparable harm and hence to a preliminary injunction.

Again, IANAL, and I go into this as an aid to reading the tea leaves
in decisions like Progress v. MySQL.  A lot of this is gleaned from
decisions like Specht v. Netscape; if I have misunderstood the
process, please correct me.

> kind regards
> batist

- Michael

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