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Re: "GPL requirement could have a chilling effect on derivativedistros"
From: |
Alexander Terekhov |
Subject: |
Re: "GPL requirement could have a chilling effect on derivativedistros" |
Date: |
Mon, 03 Jul 2006 20:32:34 +0200 |
BTW...
Alexander Terekhov wrote:
[...]
> In Mirage, Albuquerque A.R.T. removed pages from a book of artwork
> (for which Mirage Editions owned a copyright), mounted the pages on
> ceramic tiles, and sold the tiles. According to the Ninth Circuit,
^^^^^^^^^^^^^^^^^
> this process created a derivative work of the copyrighted work,
> thereby infringing the copyright. The Court reasoned that
> Albuquerque A.R.T. created a derivative work by incorporating the
> copyrighted work into its product.
>
> However, Mirage is directly contrary to the Seventh Circuit's more
> recent decision in Lee v. A.R.T. ^^^^^^^^^^^^^^^^^^^^^
>
> Scholarly disapproval of Mirage Editions has been widespread.
^^^^^^^^^^^^^^^^^^^^^
There appears to be a pattern here (between 9th and 7th).
------
Despite the fact that sec. 203 was enacted over 20 years ago as part
of the Copyright Act of 1976, there is very limited case law on its
interpretation. The only case from a court of appeals is from the
Ninth Circuit, Rano v. Sipa Press, 987 F.2d 580 (1993).2 Kip Rano
was a professional photographer who granted a nonexclusive license
of unspecified duration to Sipa to reproduce, distribute, and sell
his photographs. The relationship continued for about 8 years; Rano
then attempted to revoke the agreement and, when Sipa continued to
sell the photographs, sued for copyright infringement. The court of
appeals recognized that California law, which was the relevant
jurisdiction, allowed for termination at will of agreements of
nonspecified duration and that under appropriate circumstances the
copyright law allows the use of pertinent state law. However, the
court said that the "application of this principle of California
contract law here would directly conflict with federal copyright law"
so the state law, the court concluded, was preempted. The court then
interpreted sec. 203 to mean that unless a license explicitly
specifies an earlier termination date, it cannot be terminated prior
to 35 years.
To put it mildly, this result is deplored by commentators. If the
Rano decision were a Broadway show, bad reviews would have forced it
to close after opening night. Nimmer, for instance, finds Rano a
"remarkable result," a "wayward result," "stunning, both for its
utter absence of support in law and for the breadth of its error."
Nimmer says that the 35-year period in sec. 203 is a maximum period
that a contract can be enforced, not a minimum as Rano holds. See 3
Melville B. Nimmer & David Nimmer, Nimmer on Copyrights sec. 11.01
(1998). William T. Rintala says that the Rano court's ruling turns
protection for authors into a "windfall for those acquiring rights
for an indefinite term." William T. Rintala, Copyright Update--
Substantive Law, 379 PLI/Pat at 271, 325-26 (Practicing Law
Institute, Patents, Copyrights, Trademarks, and Literary Property
Course Handbook Series, 1994). Yet another commentator calls Rano a
"ridiculously incorrect interpretation of the statute. It takes a
provision meant to protect the author and turns it into a
straitjacket." Mark F. Radcliffe, Copyright Ownership Issues, 411
PLI/Pat at 243, 300 (Practicing Law Institute, Patents, Copyrights,
Trademarks, and Literary Property Course Handbook Series, 1995).
[...]
Because our decision conflicts with the Ninth Circuit's opinion in
Rano, it has been circulated through all members of the court in
active service. No judge has voted to hear this case en banc. [same
as in Lee v. A.R.T.]
------
He he.
regards,
alexander.