RE: Re: Open Source Licensing

From: Lawrence E. Rosen <lrosen[_at_]rosenlaw.com>
Date: Tue, 26 Aug 2003 11:28:11 -0400

Joseph Pietro Riolo wrote:
> What about the word "perpetual"? It is not ambigious but it
> is confusing. Can that license override the U.S. Copyright
> Law in respect to period of time even though it uses the
> words "copyright license"?

Good questions, Joseph. What do lawyers mean when we say, as we do in very many licenses including the OSL, that the term is perpetual?

Some say the world will end in fire, some say ice -- but it will someday end. Someday, even, copyright on present works will terminate -- although thanks to the Supreme Court that bright future isn't nigh. The word "perpetual" must mean something else legally besides "until the universe dissolves into a black mist." (Isn't there a rule against perpetuities that we studied in law school?)

For many situations in the software world, a copyright license is probably irrelevant after 18 months. :-)

I suppose the license could expressly say: "Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier." 17 U.S.C. §203.

Such language in licenses would make them unwieldy.

The law always trumps when it comes to issues of public policy and it is unnecessary for a license to say otherwise. We should train licensees to understand that, absent the invocation by the licensor of a future right that is unwaivable as a matter of public policy, the OSL license is intended to be perpetual. In this respect, the OSL perpetual grant of license is identical in duration to the dedication of the content of your www.boycottcopyright.com website to "the public domain." Both grants are revocable in limited ways as a matter of public policy.

You and I may meet in court in 35 years to argue about the word "perpetual."

/Larry Rosen

per·pet·u·al (pər-pĕch'ū-əl)
adj.

1. Lasting for eternity.
2. Continuing or lasting for an indefinitely long time.
3. Instituted to be in effect or have tenure for an unlimited duration: a treaty of perpetual friendship.
4. Continuing without interruption. See synonyms at continual.
5. Flowering throughout the growing season.

[Middle English perpetuel, from Old French, from Latin perpetuālis, from perpetuus, continuous : per-, per- + petere, to go toward.] The American Heritage® Dictionary of the English Language, Fourth Edition

P.S. Perhaps I intend meaning number 5 by my use of the word "perpetual." /LR Received on Tue Aug 26 2003 - 19:28:11 GMT