US District court says that the artistic license is a contract [LWN.net]

US District court says that the artistic license is a contract

Posted Aug 24, 2007 16:54 UTC (Fri) by branden (subscriber, #7029)
Parent article: US District court says that the artistic license is a contract

It's a good thing that non-apellate decisions are not precedential.

The district court appears to believe that violation of the terms of a copyright license cannot be copyright infringment if the violation does not exceed the "scope" of the copyright license, and proceeds to interpret the Artistic License as being maximally scoped due to its permissiveness and nonexclusivity. Consequently, ripping the attributions out of an Artistically Licensed work (as the defendants are alleged to have done) does not, in the court's view, constitute copyright infringment.

The court asserts that the plaintiff may have cause for a breach of contract action, but cites no precedent and does not explain in any way how the Artistic License constitutes a contract. No mechanism is described for how a nonexclusive copyright license offered to the general public devolves to a contract when the "scope" of the license is "broad". Nor can I discern from this ruling how one might draft a nonexclusive public license that would not necessarily suffer the same defects in this judge's view.

I hope Lawrence Rosen, a strident advocate of copyright-licenses-as-contracts, finds himself in good company.

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US District court says that the artistic license is a contract

Posted Aug 24, 2007 20:24 UTC (Fri) by rahvin (subscriber, #16953) [Link]

Actually he does explain it, with a case reference. He calls the open source license in question a "non exclusive license", implied in this is that this term is described in California law. He goes on to explain:

However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236, 242(1927) (finding that a nonexclusive license is, in essence, a mere waiver of the right to sue the licensee for infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive license may be oral or by conduct and a such a license creates a waiver of the right to sue in copyright, but not the right to sue for breach of contract).

He in essence says that the artistic license is a nonexclusive license and as such it's been ruled by precedent that nonexclusive licenses include in them a waiver of the right to sue for copyright infringement and that as the precedent quoted shows that the only claim is breech of license (a contract claim, not a copyright claim). Not saying I agree, but it's clear to me at least that there is at least some reasoning behind his madness as interpreted by case law in the state of California. I don't see how he reconciles this with his earlier statement that federal copyright law precludes automatically any state statues on the matter but I'm not the Judge, he is.

US District court says that the artistic license is a contract

Posted Aug 28, 2007 22:31 UTC (Tue) by branden (subscriber, #7029) [Link]

Thanks for pointing that out; somehow I missed it. Nevertheless, I think Effects Associates v. Cohen is strongly distinguishable from this case because its holding on nonexclusivity was applied by the appellate court only to an unwritten, implied copyright license.

B. Nonexclusive Licenses
[2] Although we reject any suggestion that moviemakers are immune to section 204, we note that there is a narrow exception to the writing requirement that may apply here. Section 204 provides that all transfers of copyright ownership must be in writing; section 101 defines transfers of ownership broadly, but expressly removes from the scope of section 204 a "nonexclusive license." See note 2 supra. The sole issue that remains, then, is whether Cohen had a nonexclusive license to use plaintiff's special effects footage.
[3] The leading treatise on copyright law states that "[a] nonexclusive license may be granted orally, or may even be implied from conduct." 3 M. Nimmer & D. Nimmer, Nimmer on Copyright <section> 10.03[A], at 10-36 (1989). Cohen relies on the latter proposition; he insists that, although Effects never gave him a written or oral license, Effects's conduct created an implied license to use the footage in "The Stuff."
Cohen relies largely on our decision in Oddo v. Ries, 743 F.2d 630 (9th Cir.1984). There, we held that Oddo, the author of a series of articles on how to restore Ford F-100 pickup trucks, had impliedly granted a limited non-exclusive license to Ries, a publisher, to use plaintiff's articles in a book on the same topic. We relied on the fact that Oddo and Ries had formed a partnership to create and publish the book, with Oddo writing and Ries providing capital. Id. at 632 & n. 1. Oddo prepared a manuscript consisting partly of material taken from his prior articles and submitted it to Ries. Id. at 632. Because the manuscript incorporated pre-existing material, it was a derivative work; by publishing it, Ries would have necessarily infringed the copyright in Oddo's articles, unless Oddo had granted him a license. Id. at 634. We concluded that, in preparing and handing over to Ries a manuscript intended for publication that, if published, would infringe Oddo's copyright, Oddo "impliedly gave the partnership a license to use the articles insofar as they were incorporated in the manuscript, for without such a license, Oddo's contribution to the partnership venture would have been of minimal value." Id. [FN5]
[4] The district court agreed with Cohen, and we agree with the district court: Oddo controls here. Like the plaintiff in Oddo, Effects created a work at defendant's request and handed it over, intending that defendant copy and distribute it. [FN6] *559 To hold that Effects did not at the same time convey a license to use the footage in "The Stuff" would mean that plaintiff's contribution to the film was "of minimal value,"a conclusion that can't be squared with the fact that Cohen paid Effects almost $56,000 for this footage. Accordingly, we conclude that Effects impliedly granted nonexclusive licenses to Cohen and his production company to incorporate the special effects footage into "The Stuff" and to New World Entertainment to distribute the film. [FN7]

(emphasis added) I think it is perfectly reasonable to construe an implied license generously. Written copyright licenses, however, are not "implied".

How similar is the relationship between Oddo and Reis to Jacobsen and Katzer/KAM? In what way did Jacobsen enter a business partnership with Katzer/KAM? Why do we need to conjecture about implied licenses when Jacobsen explicitly and conspicuously stated the terms of his nonexclusive license in written form accompanying the work?

Similarly, how are Jacobsen and Katzer/KAM similar to the immediate precedent cited, Effects v. Cohen? Where did money change hands? And again, why is the judge reaching conclusions of law grounded on facts contradictory to those stipulated by the parties? How is the Artistic License an "implied" license?

I suspect the judge in the LMRI case, or his clerk, skipped right to the conclusion of the decision, which omits this crucial distinction:

We affirm the district court's grant of summary judgment in favor of Cohen and the other defendants. We note, however, that plaintiff doesn't leave this court empty-handed. Copyright ownership is comprised of a bundle of rights; in granting a nonexclusive license to Cohen, Effects has given up only one stick from that bundle--the right to sue Cohen for copyright infringement. It retains the right to sue him in state court on a variety of other grounds, including breach of contract. [...]

Various unsavory terms for Judge Jeffery S. White come to mind, but as LWN strives to maintain decorum, I'll just invite the reader's imagination to supply some. It may be enough to note some similarity between between Judge White and the man who appointed him to the federal courts.