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Re: Big legal win for free licenses
From: David Farber <dave () farber net>
Date: Wed, 13 Aug 2008 21:12:13 -0400

Begin forwarded message:

From: Karl Auerbach <karl () cavebear com>
Date: August 13, 2008 8:37:50 PM EDT
To: dave () farber net
Cc: ip <ip () v2 listbox com>
Subject: Re: [IP] Big legal win for free licenses

David Farber wrote:

*From: *Joichi Ito <jito () neoteny com <mailto:jito () neoteny com>>

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

But then the fun begins:

Suppose I were an evil open source despoiler and I choose to disregard the license provisions and become a putative infringer.

Who has the right to bring a legal action to enforce "the copyright" that I am presumably violating?

I ask this because of two things:

1. The requirement of registration as a pre-condition to legal action for infringement in the US>

2. The fact that in many open source/GPL works there many authors of many separate pieces of many separate dates. These are, as a practical matter, never registered nor subject to a transfer agreement.

So, as I see it, I could sit back and when somebody comes along and says "you evil infringer" I could say "have you registered your work? And, by the way, what part of the whole are you claiming as your work?"

(Personally, I try to abide by the various licenses, but I'm curious about whether the sword shaking is something to be feared or can be ignored.)

It seems to me that the IP industry, which is undeniably strong, could cause the GPL to wither by getting Congress to require as a condition of copyright enforcement that a) registration of each piece be required by each author and b) that the plaintiff be able to demonstrate that he/she is either the author of the substantial body of the work or has assignments from a nearly all, perhaps even all, of the authors.

I know that I'm speaking about the evil side here, but it is good to understand.


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