Now, I promise that this is not a troll. Really, I do. I was simply reading the Copyright Act again and found this in section 106:
----------------------------------------- Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to *authorize* any of the following: ----------------------------------------- Emphasis is mine, of course. Now, to authorize, what exactly does that mean (http://dictionary.reference.com/search?q=authorize): ----------------------------------------- Synonyms: authorize, accredit, commission, empower, license These verbs mean to give someone the authority to act: authorized her partner to negotiate on her behalf; a representative who was accredited by his government; commissioned the real-estate agent to purchase the house; was empowered to make decisions during the president's absence; a pharmacist licensed to practice in two states. ----------------------------------------- So, I take this to mean that "authorize" means "license". So, now we know that the owner of copyright has the explicit authority to license, as given by the Act. The next important questions are: 1. Can an author impose any conditions to this authorization or licensing? 2. Can two owners of copyright give permission independently or do they have to create a contract in order to do so? Section 114, which relates to "Scope of exclusive rights in sound recordings", contains this text: ----------------------------------------- (2) For licenses granted under section 106(6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement � (A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: Provided, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and ----------------------------------------- First, the obvious thing here is that this Act explicity recognises the concept of "licenses granted under section 106(6)". I don't think that if licensing applies to 106(6) it wouldn't apply to the whole of 106. So, it is pretty safe to assume that a concept of licensing is something that does in fact apply here. After all, "auhtorize" == "license". Second, note the wording of establishing conditions unilaterally and not in agreement with other copyright owners. Similar situation exists when it comes to derivative works - there are multiple owners. One would tend to conclude here that this Act in fact recogizes a possiblity of multiple unilateral "licenses" or "authorizations" without an agreement between those involved (i.e. without a binding legal form, contract). Third, note the wording of "conditions". This is absolutely recognised by this Act. It is also used in combination with "unilaterally" quite explicitly. So, why did I title this e-mail "Copyright Act preempts itself"? First, "copyright license" is an "authorization" as specified by this Act and not a contract of any kind. This Act does not require any other laws for this authorization or licensing to be enforced. Second, because if the above "conditional licensing" recongition weren't the case, one would absolutely require a contract to enforce anything that has "conditions". Conditions would assume some sort of a promise, so this would then fall under the contracts law. This would then mean that in order to "authorize with conditions", as explicitly recognised here in the Act, one would need to employ a contract and therefore fall afoul of section 301 which deals with preemption when it comes to exclusive rights as set forward in section 106. Third, it would seem clear that it is explicitly allowed by the Act that multiple permissions of the owners of copyright be employed together and without an agreement between them, in order to achieve a complete permission to do something with the work. So, the logical conclusion would be that Copyright Act preempts itself if it requires some other state law in order for the exclusive rights, it (Copyright Act) exclusively governs, to be enforced. This if, of course not possible, so the only interpretation available is that "authorization with conditions" or "licensing under conditions" is explicitly allowed by the Act. Also, the other concusion is that "multiple independent permissions of copyright holders" are sufficient to get authorization (i.e. license) to do something with the copyrighted work which would be otherwise prohibited by the Act. No contract between owners of copyright is required to do so. __________________________________ Do you Yahoo!? Yahoo! Finance: Get your refund fast by filing online. http://taxes.yahoo.com/filing.html -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
