Subject: Re: Implications for switching licenses mid-stream
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 23 Apr 2008 13:41:08 -0700

Quoting Chuck Swiger (chuck@codefab.com):

> Mailing list archives make this an easily solvable problem.  :-)

Russ's ezmlm archive is often apparently backlogged on processing 
recent posts, and operates a bit oddly at the best of times (just not my
cuppa), and I usually don't have the URL handy.  Of several others
(e.g., Nabble's), I often don't have those URLs handy or they turn out
to be outdated.  So, I most often make do with fallible short-term
memory and good intentions.  (Time is short; life is imperfect.)

> Jon Lesser's original concern was: "Many people have already  
> downloaded our software with license X.  Can those people continue to  
> use what they've downloaded under the terms of X even after we change  
> the license to Y?  The X and Y cases I'm particularly interested in  
> are X=BSD, Y=GPLv3 and X=GPLv2, Y=GPLv3."

Yes, I ignored that portion of the thread because the question seemed
pretty trivial and the answer obvious.

[quoting the HOWTO:]

> "Note, however, that an `upgrade' from a copyleft license to a non- 
> copyleft license (or vice-versa) would be a different matter. If you  
> are a GPL partisan, you would be injured by a move to a non-GPL  
> license, and vice-versa. These changes are not safe and could be  
> causes of legal action for copyright infringement by a holder of  
> registered copyright (who therefore does not have to meet the actual- 
> damages test). Holders of unregistered copyright would have no  
> standing except by registering the copyright after the fact of  
> infringement, and then would have to meet the difficult actual-damages  
> standard."

Yes, I know that, and concur.  You'll note that I carefully crafted my 
example of a collective work's licence change to be new-BSD to AFL.  ;->

> See http://www.law.cornell.edu/uscode/17/usc_sec_17_00000506----000-.html
> 
> "(d) Fraudulent Removal of Copyright Notice. -- Any person who, with  
> fraudulent intent, removes or alters any notice of copyright appearing  
> on a copy of a copyrighted work shall be fined not more than $2,500."

Hmm, last time this subject came up, I wasn't able to find that clause,
which I _thought_ I remembered being present, and so conceded the point 
(to David A. Temeles, Jr. and others), apparently too hastily.  Thanks.

> ...or per the Berne Convention, Article 6bis:

Yes, I cited article 6bis in the earlier discussion with Mr. Temeles.
The problem is that the US Congress specifically declined to pass
national legislation implementing moral rights at the time it ratified
the Berne Convention, asserting that existing law already sufficiently
covered the matter.  I found a law school article analysing that point, 
concluding that Congress's logic was unsupported by fact; that there
was no protection in US law for author attribution at that time, and
that a subsequent attempt to backfill that protection via trademark law
(Dastar v. Twentieth Century Fox, 2003) had failed in US Supreme Court,
leaving, the article said, a gaping hole in US copyright law.

(Larger point:  International treaties don't signify within US law
unless and until there's enabling legislation.)

Anyway, having been wrong about being wrong, on this US protection of
author attribution within copyright law, _now_ I'm going to have to
re-read 17 U.S.C. 506 carefully to make sure we both have it right this
time.  And I'll probably sit down and figure out when 17 U.S.C. 506(d)
was adopted, for good measure.