On Thu, 6 Jan 2005 09:54:54 +0100, Batist Paklons <[EMAIL PROTECTED]> wrote: > On Wed, 5 Jan 2005 22:03:44 -0500, Nathanael Nerode > <[EMAIL PROTECTED]> 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 Cheers, - Michael
