Re: A Little Linguistic Playground

On Mon, 22 Mar 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 03/19/99, Thomas Workman <tworkman[_at_]erols.com> wrote:
> >
> > On Thu, 18 Mar 1999, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > >
> > > On Wed, 17 Mar 1999, Thomas Workman <tworkman[_at_]erols.com> wrote:
> > > >
> > > > Folks are missing the point. The law does not permit a copyright
> > > > to be "vacated" or revoked. There is no statutory provision for
> > > > doing so.
> > >
> > > That is not what the law says. Nowhere in the law says that I cannot
> > > put my work in the public domain.
> >
> > That statement is true. But you still miss the point. The law
> > specifies how a work obtains a copyright. When those conditions are
> > met, the copyright attaches. Anything you do or say does not "override"
> > the law, unless the law provides a specific mechanism for undoing what
> > it has done. The statutes provide no mechanism for destroying the
> > copyright, except for the passage of the requisite time, or of course
> > a subsequent law.
> >
> > I know of no cases on point, but I would not advise any client to use
> > a work without a license from the copyright owner.
>

<snip>
>
> If you have further interest in abandonment, I recommend Robert A.
> Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights,
> 58 Mo. L. Rev. 85 (1992). The author argues that permitting an
> author to abandon his or her copyright might be inconsistent with the
> provisions of the Copyright Act that forbid an author from waiving or
> assigning his or her right to terminate an assignment of copyright.

Professor Ochoa raises the interesting point that the copyright owner might be estopped from asserting his rights, having previously taken a position to grant a "blanket" license. His further comments raise the interesting idea of assigning the copyright to some organization dedicated to providing information in a quasi public domain. If that organization was founded with articles of organization that prohibited pursuing any copyright claim, for copyright assigned to it from any third party, that might do the trick.

I would not depend on estoppel as a defense (note that it is a defense to prevent the copyright owner from pursuing an infringement action, and does not "erase" the infringement, which did occur). I would be concerned that the abandonment writing was made by a competent individual, and that it was made by the copyright owner. I can imagine a case of a disgruntled company employee who grants a blanket license to copy work that he wrote while an employee of his company, such work being in the scope of his employment. That "author" does not own the copyright, and has no license to grant, for the company is the "author" under copyright law. I cannot see a Court estoping the company from asserting their rights in that work.

If you want to copy it, and it is important, either use the material under the "fair rights" provisions of copyright law, or if not fair use, obtain a license. The odds of being sued may be low, but you would not want to be the test case.

This is not legal advice. For legal advice in any specific situation, you must contact an attorney.

-- 
Thomas E. Workman Jr.
41 Harrison Street
Taunton, MA 02780

EMAIL: tworkman[_at_]erols.com
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