Re: Irrevecoable licences (Was: Copyright Extension Bill Passes Congress)

On Wed, 28 Oct 1998, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> On Mon, 26 Oct 1998, Andrew C. Greenberg <werdna[_at_]gate.net> wrote:
> >
> > My understanding is that a license can be revoked at any time unless
> > it expressly irrevocable ("I grant an irrevocable license to Karsten
> > to ..."), is coupled with an interest in the copyright or is given
> > in such manner as to induce reasonable and actual reliance to the
> > licensee's detriment (like selling it, or using the code in such
> > manner that it would be costly to change over).
>
> As a late comer to this thread, under English and Australian law,
> there might be problems with revoking such a licence. Promissory
> estoppel (the licenser might be estopped from denying the continuation
> of a licence where his or her conduct suggests that it will continue
> and this conduct is relied on by the licensee to his or her detriment)
> and non derogation from grant (common law analogy to first sale
> doctrine) both seem applicable.

As to estoppel, that would relate to the "reasonable and actual reliance" I referred to above. Material reliance would be difficult to prove up in routine cases, IMHO. I don't know much about "non derogation from grant," however.

> My understanding was that promissory estoppel (under a different name
> if I recall) was more developed in the US than in Australia. Is this
> correct?

We call it promissory estoppel as well. It is true that many U.S. courts have recognized promissory estoppel as a substitute for consideration in contract cases. It is certainly the sort of thing they make a big deal about in law school, but I have not seen it much in practice. Estoppel works fine in theory and in cases in which you are willing to appeal, but I confess that I have never seen it meaningfully applied as a tool in a practical case unless there was no other argument in the quiver -- and I have never seen it win.

Still other jurisdictions have actually recognized an independent cause of action called promissory estoppel. My understanding is that those jurisdictions constitute a minority of the states, but I am no expert in these matters.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Thu Oct 29 1998 - 12:30:29 GMT