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Comment by antiterra | Hacker News Reader

This portion of existing US copyright law is a bit curious. On the one hand, letting artists 'have a second bite of the apple' if their work turns out to be so lucrative that the original terms are inappropriate sounds good. On the other hand, not letting someone sell all of their rights seems a limitation on personal freedom and we should recognize that publishers often risk paying an artist for a work that is a commercial dud.

Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years. This would likely be a mess, would subsequent revisions be considered derivative infringement?

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It's important to note that it wasn't always like this. The basic concept of termination rights -- recognizing the wild power imbalance between artist and publisher, and therefore giving the artist a second crack at selling their rights -- is quite old, but in practice it hasn't mattered; the upshot was that the standard publishing deal included an automatic renewal, so the right may as well not have existed. So in 1976 Congress chose to double down on termination, making it explicitly an inalienable right that cannot be sold by any type of contract.

It strikes me as a rather tortured reading of this that makes it a limitation of the artists' rights, rather than the publishers'; like laws which outlaw contractual slavery, while it technically bans both parties from participating, the intended impact is much more on the would-be oppressor than the oppressed.

Now, the impact that this might have on open source is certainly interesting, but I doubt it would have far-reaching implications since termination wouldn't retroactively affect licenses that were in force at the time, so derivative works would be in the clear. On the other hand, who knows how the case law will shake out on this over the next few years... software will probably not be the most affected industry.

> It strikes me as a rather tortured reading of this that makes it a limitation of the artists' rights, rather than the publishers'

I'm personally not entirely against the law as it stands, and I agree that publishers have a great deal of power to define the terms of an agreement they can force on an artist. That said, I don't think it's so tortured to think someone really might not want her heirs to meddle with her license grants to a university or museum.

That's a legit criticism, but it sounds to me like it's more a criticism of the inheritability of copyright than of termination rights per se. (Is it any more fair that my heirs could sell my work to Disney?)

Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years.

It seems this applies to transfers, not licenses that have no effect on the copyright holder. The GPL, for example, doesn't take rights away from the original author and give them to someone else, unlike a recording contract.

Nope, from 17 U.S.C. §203:

"(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright[...] is subject to termination under the following conditions [...]"

- http://www.copyright.gov/title17/92chap2.html#203

203b1, allowing derivative works to continue to be used after the termination, seems to reduce the impact this would have on GPLed software.

Has anyone written about the possible interactions with copyright termination of permissive and copyleft licenses?

I remember PJ mentioned it, very dismissively, in a Groklaw post[1] and its comments in 2008. I made the same suggestion[2] you did about 203(b)(1), but another anonymous commenter pointed out that further works based on the source might be problematic.

[1] http://www.groklaw.net/articlebasic.php?story=20060622045521...

[2] http://www.groklaw.net/comment.php?mode=display&sid=20060622...

It sounds like an area of copyright law that is in desperate need of clarification from the legislature before the courts become involved, considering that modern copyrighted works are almost always "licensed" as a matter of usage, not just as part of a distribution and publishing agreement.

Or maybe that was the intent of the software vendors all along -- revoke all licenses after 35 years so we have no choice but to upgrade ;-).

I'm not sure I understand how it could be considered a "limitation on personal freedom" since I believe termination requires action by the artist.

The argument is that an artist can't sell a license to a new copyright guaranteed to last longer than 35 years, i.e. sell their termination rights for money up front. Any such wording is unenforceable today. Therefore, artists are limited in the manner which they may sell their own work.

Ah, I see. So even though you could still technically sell your rights and then never ask for them back, the law has made this effectively impossible because the buyer can't prevent you from doing so. Interesting.

The statute doesn't seem to limit the selling of derivatives, though... it seems to me that it would be quite straightforward for the artist to simply sell the copyright as well as a call option on the same copyright 35 years in the future. So artist really hasn't lost any rights.

The statute says that any agreement to grant a license which is made before the date of termination is invalid. That would certainly include an optional license.

It was a common thing before '76, and the current statute is quite clear-- you can't sign anything that would give this right up before it happens.

> Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years.

That's true (and without the 35 year limitation) just based on the fact that gratuitous licenses are revocable at will, terminations rights aren't even necessary to it.

The effect of revocation might be mitigated to some extent by promissory estoppel, but -- despite the fact that some people have asserted that that completely neutralizes the risk -- I've seen no substantial case law that is directly on point or even closely analogous that supports the idea that it would completely negate the effect of revocation.

Some people claim that there is an element of consideration to the GPL that makes it subject to regular contract law, but, yes, as far as I know as a non-lawyer, there's no caselaw either way.

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