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Re: New 'Public Domain' Licence

On Thursday 09 June 2005 06:36 pm, Michael K. Edwards wrote:
> 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.

You could be right...  but I think that Mills is distinguishable on the law 
(if not also the facts...).  The renewal right under (s)304 and the 
termination right under (s)203 are really quite different.  For example, the 
renewal right is transferable, where the termination right is not.  
Additionally, if utilization is read the way you suggest, it really strikes 
at the heart of the policy objective of the termination right.

The objective, as explained by my Copyrights Prof., is to provide authors a 
second chance to negotiate licenses that may have been poorly made when the 
work was first released.  If termination only prohibits the creation of new 
derivative works, leaving copying and distribution of preexisting 
derivatives, then what's really left to renegotiate?  

As an added complication, the utilization term is only applicable in the case 
of derivative works based on the licensed work, but not pure copies.  So if I 
have a license to copy and distribute a Beatles's song without any 
alterations from the original, when the license is terminated I'm left with 
nothing...  I can't even keep the original copy around!  Does making a 
derivative really earn you so many rights that you not only get to keep the 
copy, but also made new copies and distribute?!

... something doesn't smell right.


Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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