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Re: New 'Public Domain' Licence

On 6/8/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> This section is not referring to transferring termination rights by will, it
> is referring to copyright assignment by will.
> So, if I assign you my copyright in FOO via a will, then the assignment is not
> subject to termination.  However, it doesn't say anything about transferring
> the termination right by will.  So, if our intrepid Public Domainers really
> want to avoid having their heirs terminating licenses, they should assign all
> of their copyrights to the ether, and then arrange for their immediate death.
> Of course, I don't really think that will work under the law of wills...  nor
> could you forever GPL your work via a will, because the GPL does not assign
> the copyright.  Absent a clear assignment, your copyright will transfer via
> intestancy and end up in the hands of your heirs...  because someone's got to
> think of the children!

We're in violent agreement here.  :-)  I never said (or at least never
meant to say) that the termination right was assignable by will, only
that it was possible to extinguish it, as regards one's heirs, by a
(reaffirmation of) copyright assignment in one's will.  See my earlier
message for how a benevolent dictator with a shell corporation, plus
the fact that the GPL is an offer of bilateral contract, helps parlay
this extinction of the termination right into a GPL release that
neither one's heirs nor the benevolent dictator can revoke.

> Yeah, maybe...  but the work-for-hire doctrine is tricky business.  You can't
> just declare something a work-for-hire, it is dependent on behavior.  I find
> it difficult to accept that most screenplays are done as a work-for-hire,
> because (if I understand the industry) the author pitches a screenplay to the
> production house.  Unless the screenplay writer is drawing a regular salary,
> working in house, and under the direction of the production house, it is
> unlikely to be considered a work-for-hire.

My understanding is that screenwriters working "on spec" (speculation,
not specification) are guided by their agents in the creation of a
shell corporation which receives their royalties from past deals and
doles them out to the screenwriter as salary, nominally in return for
copyright in new works on a "work made for hire" basis.  I've had
occasion to follow a very similar practice when wearing my "software
consulting services" hat, more for tax reasons than for copyright's
sake.  But I don't know all the ins and outs of "work made for hire"
in a copyright context (it's actually quite different from employment
law), so TIEmphaticallyNLA.

For a case in the area of modern dance where the appeals court ruled,
using facts determined in district court, partly for and partly
against assertion of the "works made for hire" doctrine, see Martha
Graham School v. Martha Graham Center,
http://caselaw.lp.findlaw.com/data2/circs/2nd/029451p.pdf .  But see
also Marvel Characters v. Simon at
http://caselaw.lp.findlaw.com/data2/circs/2nd/027221.html ; if the
relationship is not properly structured up front, even an otherwise
binding acknowledgment of "works made for hire" status may be
repudiated for purposes of termination of assignment.

> > It's always nice to have genuinely knowledgeable people (which I am
> > not) in the discussion.  :-)  You may be right about the "utilize"
> > language in 17 USC 203 (b) (1); I ought to track down the full House
> > Report.
> Woah, someone saying someone else might be right on Debian-Legal!!!  I am
> shocking, amazed, and completely humbled.

Yeah, well, I'm rather proud of the fact that I can still surprise and
shock people.  :-)

However, I think the House Report actually supports an interpretation
of 203(b)(1) in which continued reproduction and distribution of a
derivative work is permitted after termination of license to the
original.  Here is the relevant text:

An important limitation on the rights of a copyright owner under a
terminated grant is specified in section 203(b)(1).  This clause
provides that, notwithstanding a termination, a derivative work
prepared earlier may ''continue to be utilized'' under the conditions
of the terminated grant; the clause adds, however, that this privilege
is not broad enough to permit the preparation of other derivative
works.  In other words, a film made from a play could continue to be
licensed for performance after the motion picture contract had been
terminated but any remake rights covered by the contract would be cut
off.  For this purpose, a motion picture would be considered as a
''derivative work'' with respect to every ''preexisting work''
incorporated in it, whether the preexisting work was created
independently or was prepared expressly for the motion picture.

It's worth noting that this was written in 1976, before consumer
videotape, and that Congress was thinking specifically about film
"performance" rights rather than reproduction for retail sale.  It's
poorly drafted law, and Congress ought to fix it before it becomes a
serious issue in software space.  If there were not yet any appellate
case law in this area, I think one would have a fair chance of arguing
that the legislative record of the existing statute already demands
that the right to "utilize" a software derivative work include the
right to make and distribute additional copies of it.

Since it isn't 2013 yet, there are only two ways in which it is likely
that 17 USC 203 has come up in court: as a possible override of state
contract law regarding copyright licenses of indefinite duration (as
in Rano v. Sipa Press, Walthal v. Rusk, and Korman v. HBC Florida),
and as a source of insight into similar provisions regarding pre-1978
conveyances in 17 USC 304 (as in Broadcast Music v. Roger Miller
Music, http://caselaw.lp.findlaw.com/data2/circs/6th/025766p.pdf ).

17 USC 304(c) (6) (A), however, contains the same exception as 17 USC
203 (b) (1); and its meaning has been addressed by the Supreme Court
in the 1985 case Mills Music v. Snyder (
http://laws.findlaw.com/us/469/153.html ).  Although the Court split
5-4 on the issue of whether Mills Music (the middleman between Ted
Snyder and the record companies that actually prepared derivative
works) deserved to be covered by the Exception, all nine Justices
agreed that the phrase "utilized under the terms of the grant"
included the record companies' actions in continuing to duplicate and
sell recordings that had already been "prepared", i. e., recorded in a

So I think it turns out I was right in the first place: continued
verbatim copying and distribution counts as "utilization", and the
only scope for argument is about how much bug-fixing you can do after
termination without being sued for "preparing" a new derivative work.

- Michael

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