Re: Re: Software Licensing Agreement

At 6:15 PM -0500 2/6/06, Steven Jamar wrote:
>Help me out here. What risks and flaws? If I as the copyright
>owner put something into the public domain, what is the risk? Not
>that I will sue, surely. Nor that it is not in the public domain.
>
>What flaw? That people will not know that it has been put into the
>public domain and therefore will not use it as if it were?
>
>I guess I see no risk or flaw in simply relinquishing the copyright
>and putting the IP in the work in the public domain.
>

Two risks and one flaw:

The first risk is that the copyright has not been relinquished and the work is not in the public domain because the Copyright Act does not recognize "relinquishment," or provide a statutory mechanism for a "relinquishment." It frustrates the legislative purpose underlying the termination right, which cannot be avoided by assignment or license, nor likely by calling it a "relinquishment." It's not clear whether "relinquishments" are revocable; whether "relinquishments" are enforceable in law, absent privity, offer, acceptance and consideration; or whether "relinquishments" are enforceable in equity by estoppel against the claim by his heirs that the author's "relinquishment" of millions of dollars in royalties was the act of a madman.

The second risk is that the copyright has been relinquished and the work is in the public domain, and the people who might really want to use it, would even gladly pay for the right to use it, won't touch it because they don't want to end up like Xerox and SCO spending millions of dollars on lawyers trying to figure out who can do what with whatever is or isn't the uncopyrighted, unregistered original work, of which there is no official record because the Library of Congress has a Copyright Office, but no Public Domain Office.

The flaw is in resorting to non-uniform state law, without even knowing which state's law might be applied, and where you would probably have to look to the quirky and arcane law of abandonment, because they don't know what a "relinquishment" is either, to override the comprehensive federal statutory scheme for the uniform, and usually preemptive, determination of the existence, scope, duration and enforceability of copyrights.

Otherwise, it looks pretty tight.

John Noble Received on Wed Feb 08 2006 - 00:20:00 GMT