Re: GPL, "license upgrades", and the obligation to offer source code

["Michael K. Edwards" <m.k.edwards@gmail.com>]

On 5/11/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/11/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > I agree with your wish, with respect to certain of my works.
> > Unfortunately, under 17 USC, the only way to avoid transfer of my
> > termination interest in copyright assignments and licenses is for my
> > work to have been a "work made for hire".
> 
> On the other hand, the termination is not for 35 years after the grant.
> And, in the case of the GPL, everyone gets an independent grant:
> 
>    Each time you redistribute the Program (or any work based on
>    the Program), the recipient automatically receives a license
>    from the original licensor to copy, distribute or modify the
>    Program subject to these terms and conditions.
> 
> This might not be as effective as a "work made for hire" for a shell
> corporation, but I wouldn't want to bet that these license grants are
> ineffective, either.

That's actually one of the subtler reductio ad absurdum arguments
against construing this clause as independent offers of contract from
each copyright holder.  The actual, historical law to the rescue
again!  I (IANAL) would expect a court to construe this as a grant of
agency to sublicense under the GPL's terms.  That grant of agency --
which is effective at the time that someone first accepts license from
an individual under the GPL with respect to a particular "work", i.
e., blob-o-source -- is the "hypothecation" that 17 USC permits to be
terminated after 35 years.  I would actually expect a court to date
it, with respect to a work published on the Internet, as of the date
that the offer of agency became constructively available to some
hypothetical anonymous licensee.

Oh, and with respect to copyrights assigned to, say, the FSF -- it's
the copyright assignment that's terminable, along with the FSF's
entire authority to offer license with respect to that work and to
authorize others to do so.

> Also, if a currently valid work is being actively maintained,
> it's possible that an original author who is dead for 35 years
> will no longer own a majority of the work.

Which is completely irrelevant.  Any degree of derivation which is not
"de minimis" under the Computer Associates v. Altai
abstraction-filtration-comparison test, or its equivalent in the
appropriate jurisdiction, gets a complainant past the "copying"
threshold and on to an evaluation of licensing status and other
affirmative defenses.  And it's not "dead for 35 years" -- it's "35
years from hypothecation".

> Anyways, I'm more worried about new legislation that changes
> the rules in an unfair fashion than I'm worried about this one.
> But the best defense against new legislation is having a strong
> and growing free software community.

The best defense is a good offense.  And it helps to know the rules of the game.

Cheers,
- Michael