Subject: Re: A potential transfer problem
From: Rod Dixon <rodd@cyberspaces.org>
Date: Fri, 19 Mar 2004 15:39:18 -0500 (EST)

I do not see section 205(e) creating a problem for open source at all.

Rod


On Fri, 19 Mar 2004, daniel wallace wrote:

> Any code developer who releases FOSS code under an unsigned,
> nonexclusive license retains the original copyright
> ownership rights. If the code developer subsequently legally
> transfers his copyrights to a new owner, the code released
> under the license is no longer protected from infringement
> claims by the new copyright owner.
>
> TITLE 17 - COPYRIGHTS
> CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER
> Sec. 205. Recordation of transfers and other documents.
>
> (e) Priority Between Conflicting Transfer of Ownership and
> Nonexclusive License. - A nonexclusive license, whether
> recorded or not, prevails over a conflicting transfer of
> copyright ownership if the license is evidenced by a written
> instrument signed by the owner of the rights licensed or
> such owner's duly authorized agent, and if -
> (1) the license was taken before execution of the transfer;
> or
> (2) the license was taken in good faith before recordation
> of the transfer and without notice of it.
>
> Sec. 205 (e) states a sufficient condition for a
> nonexclusive license to prevail. Is it a necessary
> condition?
>
> IF it is signed THEN it prevails (a sufficient condition),
> but does...
> IF it prevails THEN it is signed (a necessary condition)
> hold true?
>
> Here are the remarks from the anointed USC (section (e) is
> formerly section (f)).
>
> "... under subsection (f) of section 205, a nonexclusive
> license in writing and signed, whether recorded or not,
> would be valid against a later transfer, and would also
> prevail as against a prior unrecorded transfer if taken
> in good faith and without notice. Objections were raised
> by motion picture producers, particularly to the
> provision allowing unrecorded nonexclusive licenses to
> prevail over subsequent transfers, on the ground that a
> nonexclusive license can have drastic effects on the
> value of a copyright. On the other hand, the
> impracticalities and burdens that would accompany any
> requirement of recordation of nonexclusive licenses
> outweigh the limited advantages of a statutory recordation
> system for them."
>
> As we have witnessed with the SCO debacle, any questions
> concerning nonexclusive license and copyright transfers
> should be examined in the short term so that any
> enterprising mischief makers (read Microsoft) can be
> neutralized.
>
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