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Re: New 'Public Domain' Licence

I wrote:
> 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.

Sean commented previously that Congress's use of the otherwise
undefined word "utilize" in 17 USC 203 is confusing, and I agree. 
However, the Mills Music case clears things up considerably; and as
Congress hasn't seen the need to override Mills by modifying 203 and
304 in any of the various revisions to the Act over the subsequent 20
years, I think we can take it as good law.  Although I haven't
Shepardized it yet, I've used FindLaw to search for subsequent Supreme
Court decisions that reference Mills, and it doesn't appear to have
been repudiated by later courts.

In fact, see Stewart v. Abend 1990, which references Mills when
comparing the 304(c)(6)(A) exception to the author's termination
rights against the lack of such an exception in the provisions for the
renewal term of a pre-1978 copyright.  The opinion states: "For
example, if petitioners held a valid copyright in the story throughout
the original and renewal terms, and the renewal term in 'Rear Window'
were about to expire, petitioners could continue to distribute the
motion picture even if respondent terminated the grant of rights, but
could not create a new motion picture version of the story."

Thus Mills was still good precedent in 1990, and was used in the
course of distinguishing between relicensing at the commencement of
the renewal term and post-renewal-term termination with respect to
pre-1978 works. Note also that the Supreme Court affirmed the decision
of the Ninth Circuit in Stewart v. Abend and largely rejected the
reasoning in the 1977 Rohauer v. Killiam Shows decision of the Second
Circuit (the previous authority, given that certioriari was denied at
that time).  It is interesting to note that Nimmer's commentary on
Rohauer seems to have strongly influenced the justices who joined in
the Stewart decision.

It is interesting to search forward for circuit rulings that cite
Mills Music; see, for instance,  Fred Ahlert Music v. Warner/Chappell
1998 ( http://caselaw.lp.findlaw.com/data2/circs/2nd/977705.html ),
which certainly seems to indicate that Mills was still good law and
that "utilize ... under the terms of the grant" continues to be
understood to refer to a continuation of all terms of, and limitations
on, the original license with respect to a derivative work already

- Michael

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