Enforceability of an "irrevocable" copyright license.

ne...@google.com

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Oct 31, 2011, 12:36:29 PM10/31/11

to

A popular web services providers license says:

"11.1 You retain copyright and any other rights you already hold in
Content which you submit, post or display on or through, the Services.
By submitting, posting or displaying the content you give Google a
perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
license to reproduce, adapt, modify, translate, publish, publicly
perform, publicly display and distribute any Content which you submit,
post or display on or through, the Services."

I find the idea of an "irrevocable" license a bit odd. The above says
that you posess the copyright but don't posess the copyright. Last
time I checked: a + (-a) = 0. The statement is a self-
contradiction.

Is there precedent for mitigating a copyright license contract based
on a license overeaching the scope of its authority? The licensor was
granted a uniquely instantiated right when the copyright was
registered. A copyright is only functional if it is solitary is it
not? I mean you don't register "copyrights", for a single work.

So doesn't irrevocability quash the uniqueness of that grant, and thus
cause the copyright to cease to be a "copyright" by definition? And
if that is the case, then isn't above license, a violation of a
regulation issued by the state, by a private party without due
process? Therefore making it... Unenforceable?

Thanks!

===========================================================
= Disclaimer: Caveat Emptor - until I create a disclaimer =
===========================================================

ne...@four.schnuerpel.eu

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Nov 2, 2011, 8:22:40 PM11/2/11

to

ne...@google.com wrote :

> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd. The above says
> that you posess the copyright but don't posess the copyright. Last
> time I checked: a + (-a) = 0. The statement is a self-
> contradiction.
>
> Is there precedent for mitigating a copyright license contract based
> on a license overeaching the scope of its authority? The licensor was
> granted a uniquely instantiated right when the copyright was
> registered. A copyright is only functional if it is solitary is it
> not? I mean you don't register "copyrights", for a single work.
>
> So doesn't irrevocability quash the uniqueness of that grant, and thus
> cause the copyright to cease to be a "copyright" by definition? And
> if that is the case, then isn't above license, a violation of a
> regulation issued by the state, by a private party without due
> process? Therefore making it... Unenforceable?
>
> Thanks!

The license language is standard. I have never encountered a licensee
who would accept a license which could be revoked except in
circumstances where the agreement contains agreed upon circumstances
which might trigger revocation, such as failure to pay the minimum
royalty. A revocation would mean that the licensee would have to
prevent any repeated publication. Republication would occur every time
a user accessed the material in the database. Which means it would
have to be deleted from the archive upon revocation. I think Google
presently offers users the ability to delete material that the user
posted. The clause you posted above means that Google is unwilling to
turn any glitch or delay in that delete feature into a copyright
license violation, or a million copyright violations. The term is not
only standard, it is reasonable.

You did not object to the word perpetual, but I add that the licensee
would never accept anything less than perpetual in this context.
Google would never accept the idea that they could not publish in the
future something from their archives which is older than the term of
the license.

No, the word "irrevocable" is not a contradiction in any way to
anything in the license or to any legal concept. First, the license
contains the term "non-exclusive". That means the copyright holder
retains the right to publish the material and to license others to do
so. Second, even if this were an exclusive license, there is nothing
contradictory in the idea that the owner of a thing can sell the thing.
Your math is correct - if you own an apple and sell the apple, you
don't own the apple. But if you license Google to publish your
copyright protected material and you retain the right to publish it
yourself and the right to license Yahoo and others to publish it also,
you still own the copyright.

Overreaching what authority? Google is being granted a perpetual,
non-exclusive, irrevocable license. That does not destroy your
copyright in any way, except that you cannot grant to anyone else an
“exclusive” license to use the same material. Yes, the copyright means
you have a solitary right, but only until you give it away. There is
no law making it illegal or overreaching for you to give away or
diminish the solitary nature of the copyright. You have the
constitutional right to do so.

Due process does not apply because the constitutional provisions having
anything to do with due process do not apply to a private transaction.
Those provisions are restrictions on government action. Due process is
not required by law in the process of entering into a contract between
a private author and a private licensor.

This answer must not be relied on as legal advice for the reasons
posted here: http://mcgyverdisclaimer.blogspot.com . And I am not
your attorney.

McGyver

mod-s...@uni-berlin.de

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Nov 2, 2011, 8:22:40 PM11/2/11

to

ne...@google.com wrote:

> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold
> in Content which you submit, post or display on or through, the
> Services. By submitting, posting or displaying the content you
> give Google a perpetual, irrevocable, worldwide, royalty-free,
> and non-exclusive license to reproduce, adapt, modify,
> translate, publish, publicly perform, publicly display and
> distribute any Content which you submit, post or display on or
> through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd.

Why is that? Normally licenses (rights granted without
consideration) are revocable. There's no reason not to ask for an
irrevocable one. The question is whether, legally, it actually is.

> The above says that you posess the copyright but don't posess the
> copyright. Last time I checked: a + (-a) = 0. The statement is
> a self- contradiction.

No, it says that you have the copyright, but google has certain,
limited rights. They can't give other people the right to violate
your copyright, for example.

> Is there precedent for mitigating a copyright license contract
> based on a license overeaching the scope of its authority? The
> licensor was granted a uniquely instantiated right when the
> copyright was registered. A copyright is only functional if it
> is solitary is it not? I mean you don't register "copyrights",
> for a single work.

If you are given consideration in exchange for your promise, it's
an enforceable promise. If you were not, it's probably not
enforceable. The legal issue is whether or not there was
consideration.

___
Stu
http://DownToEarthLawyer.com

pos...@giganews.com

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Nov 2, 2011, 8:22:40 PM11/2/11

to

> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd.

I find the idea of a "revocable" license a bit odd, especially when
it's to something sold retail and is revocable for a reason other
than the customer violating the license. That says you, the copyright
holder, can take back what the customer paid for at any time, which
makes whatever he got for his money pretty worthless. But this
happens often with DRM-infected products when the company no longer
maintains the servers to validate the licenses they sold.

> The above says
> that you posess the copyright but don't posess the copyright. Last

No, it says that the web site has the right to use the material,
and you can't change your mind about it afterwards, so the web site
doesn't have to keep track of whose stuff is whose. It's a
*NON-EXCLUSIVE* license, which means that you, the copyright holder,
can license it to someone else if you want.

It might make sense to argue that you no longer possess the copyright
if you granted a non-revocable license to use it to *everyone*, or
if you granted an *exclusive* license to the material to the web
site. That isn't the case here.

If it is your point that your material is unmarketable and no one
will pay for it because it's available free from Google, well,
nobody said a copyrighted work has to be worth money. My grocery
lists sure aren't worth anything to anyone (yes, they are "born
copyrighted"). If you want to make lots of money selling it, don't
post it on Google's web site. Don't be so sure that *nobody* will
pay for your work if it's available free from Google. Lots of
people won't know that.

> time I checked: a + (-a) = 0. The statement is a self-
> contradiction.

No, it's not. Giving someone (non-exclusive) rights to use your
work is not giving up your copyright, especially as long as there
is someone else (or something else) you could license it to.

> Is there precedent for mitigating a copyright license contract based
> on a license overeaching the scope of its authority?

I don't understand what this means. The copyright holder issuing
the license has the authority to grant those rights, unless you're
assuming that the situation is that the web site user is going to
post *SOMEONE ELSE'S* copyrighted material to which the web site
user has no rights to grant.

> The licensor was
> granted a uniquely instantiated right when the copyright was
> registered. A copyright is only functional if it is solitary is it
> not? I mean you don't register "copyrights", for a single work.

If you get one copyright for a work, you can license it up to, say,
6 3/4 billion times if you restrict your marketing to humans on
Earth. And I'm not so sure you can't get one copyright for the
writing, one for the artwork, one for the music, and one for each
performance, and one for each version of a manuscript, all on
essentially the same work. A "movie" is likely to be a patchwork
quilt of copyrights originally owned individually by everyone
involved in making it, although some of them are "works for hire"
and transferred to the production company, and others are transferred
by contract.

If you have a copyright, there is nothing preventing you from
licensing large numbers of consumers to have and use a copy of it,
whatever it is. (This is the way things like books and DVDs work).
Irrevocable or not.

> So doesn't irrevocability quash the uniqueness of that grant, and thus
> cause the copyright to cease to be a "copyright" by definition? And

No. A copyright granted by a government and a license granted by
a copyright holder are two different things. Licenses that are
not *exclusive* need not have uniqueness. One copyright can be
licensed millions of times. This is not unusual. Walk into any
music/video store or book store.

> if that is the case,

It's not.

> then isn't above license, a violation of a
> regulation issued by the state, by a private party without due
> process? Therefore making it... Unenforceable?

No.

pos...@giganews.com

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Nov 2, 2011, 8:22:40 PM11/2/11

to

ne...@google.com wrote:
=20

> A popular web services providers license says:

> =20

> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."

> =20

> I find the idea of an "irrevocable" license a bit odd. The above says
> that you posess the copyright but don't posess the copyright. Last

> time I checked: a + (-a) =3D 0. The statement is a self-
> contradiction.
> =20

> Is there precedent for mitigating a copyright license contract based
> on a license overeaching the scope of its authority? The licensor was
> granted a uniquely instantiated right when the copyright was
> registered. A copyright is only functional if it is solitary is it
> not? I mean you don't register "copyrights", for a single work.

> =20

> So doesn't irrevocability quash the uniqueness of that grant, and thus
> cause the copyright to cease to be a "copyright" by definition? And
> if that is the case, then isn't above license, a violation of a
> regulation issued by the state, by a private party without due
> process? Therefore making it... Unenforceable?

> =20
> Thanks!
> =20
> =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
> =3D Disclaimer: Caveat Emptor - until I create a disclaimer =3D
> =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D

Publishers are asking for broader and broader grants of rights from=20
authors, authors are starting to chafe. I suppose there could be some=20
claims of unenforceability, but copyright is personal property, and if=20
the holder can sell his copyright outright, what stops him from keeping=20
ownership but selling all rights that accrue from that ownership?

Notice that in the text you quote, the grant is non-exclusive, so the=20
author is free to grant to others the right to copy the work. Or to=20
restrict them from so copying.

I'm not sure what you mean by "solitary," but it's unnecessary to=20
register a copyright. Once you create a work in a permanent medium, you=20
own the copyright to the work. Proving unregistered works are yours may=20
be more difficult, but that's a different matter.

Look at it from a publisher's point of view. What good is a grant to=20
publish from a copyright holder who can revoke his grant? All your best-
selling authors would simply revoke and go looking for a better deal.

ne...@google.com

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Nov 2, 2011, 8:22:41 PM11/2/11

to

On Oct 31, 11:36 am, n...@google.com wrote:
> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."

Oh, kay.

> I find the idea of an "irrevocable" license a bit odd.

Why? A "license" is a form of property right - remember that the term
for copyrights, trademarks, patents, etc. is "intellectual property."
Other kinds of licenses can _also_ be revocable, or irrevocable -- for
instance, the permission to pass over someone else's land which is
granted by a "license" to do so may be revocable (e.g. if it is an "at
will" gratuitous license, or e.g. a license to park your car in
someone else's parking lot) or may be irrevocable (e.g. if it is a
bought-and-paid for, irrevocable perpetual easement that will run with
the land).

> The above says
> that you posess the copyright but don't posess [sic] the copyright.

No, it doesn't. You are parsing it wrong. It says 2 things, in a
dependent clause joined by the conjunctive "and":

"You retain copyright ... rights you already hold"

"You retain ... any other rights you already hold"

Yes, it's TAUTOLOGICAL, stating the obvious, but it's not
_contradictory_ - it is simply saying that WHAT IS, IS. The
corollary being, WHAT ISN'T, ISN'T. If you the poster _do_not_
already hold copyright or other rights in the material you post, this
disclaimer is _not_ going to grant you any such rights out of whole
cloth.

If you post material in which you do NOT hold any copyright or other
rights, the ISP may be hit with a DMCA takedown notice from someone
who _does_ hold such rights. But this disclaimer gives the ISP a
"safe harbor" so that THEY will not get sued for infringement if they
promptly take down, after receipt of such notice, copyrighted material
that somebody posted to their site without authorization from the
copyright owner.

> Last time I checked: a + (-a) = 0.

That's not what it says either. Because the license granted to the
ISP is NON-exclusive, the original owner of the copyrighted material
_also_ has the right to do all those things with their own material,
_and_ also has the right to license additional _other_ people or
companies with the (non-exclusive) right to do those things, too.
Moreover, the ISP, as a mere licensee rather than owner, does _not_
have the right to _re_-license that content for anyone _else_ to
publish, distribute, perform, etc.

There are an infinite number of things you as the copyright owner can
do with your copyrighted material. There is a SMALLER, but still
infinite (if that is possible), SUBSET of things that the ISP can do
with your copyrighted material, per the license you are granting to
them via your act of posting to their website. I'm no mathematician,
but that makes sense to me.

> The statement is a self-contradiction.

Not at all.

> Is there precedent for mitigating a copyright license contract based

> on a license overeaching [sic] the scope of its authority?

In what way do you claim this license is "overreaching?"

> The licensor was
> granted a uniquely instantiated right when the copyright was
> registered.

By licensor, you mean the OWNER of the copyright I presume?

> A copyright is only functional if it is solitary is it not?

Yes, BUT, the copyright owner _does_not_give_up_ his copyright in a
given work, simply by the act of licensing certain other persons to
make copies of that work. Otherwise the whole publishing industry
would lack a basis. The author of a work authorizes someone else, a
printer or publishing house, to make certain copies, but (unless he
_sold_ that copyright to the publishing house) the author is still the
owner of the copyright.

> I mean you don't register "copyrights", for a single work.

Um, maybe you do, if it is a DERIVATIVE work. Frex, the author of a
text in a foreign language may hold the copyright to that original
content, while a translator who makes a copy in English (with the
permission of the author) may own the copyright to that translation.

I think you mis-understand the concept of what a "license" IS. A
license is a grant of PERMISSION by the owner to someone else, to do
something with the owner's property, as described by the terms of that
license, and it is a property right (or bundle of described rights)
that is substantially LESS THAN the complete bundle of rights that we
call "ownership." So, by granting a license the owner DOES NOT give
up ownership of his property; he just gives up (temporarily or
permanently, revocably or irrevocably) exclusive control over one or
more ASPECTS of that ownership.

When you let someone else borrow your chainsaw, you are (in legal
parlance) "licensing" their use.of that chattel property upon whatever
terms and conditions you the owner set when you let the neighbor use
it. But you are not giving up OWNERSHIP of that tool, which your
neighbor has to GIVE BACK when he is done using it (or, when the
license you gave him expires, if it is a temporary one, or whenever
you ask, if it is a revocable license)

> So doesn't irrevocability quash the uniqueness of that grant,

No.

> and thus
> cause the copyright to cease to be a "copyright" by definition?

No.

> And
> if that is the case, then isn't above license, a violation of a
> regulation issued by the state,

It is the FEDERAL government, not any state, that issues and protects
copyright.

> by a private party without due process?

I can't parse your jailhouse lawyering, here. Whgere's the lack of
due process? It's a CONTRACT. If you don't agree to those terms,
then, DON'T POST to that provider's website. No coercion is involved;
you have freedom to contract or NOT to contract with that other party.

> Therefore making it... Unenforceable?

Nuh-uh. Nope. Not so. Bzzzzt.

> Thanks!

Yer welcome

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685

pos...@giganews.com

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Nov 2, 2011, 8:22:41 PM11/2/11

to

In article <j8miqd$ehf$1...@panix2.panix.com>, <ne...@google.com> wrote:
> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd.

Which merely indicates you 'don't know what you don't know."

> The above says
> that you posess the copyright but don't posess the copyright.

False to fact.

> Last
> time I checked: a + (-a) = 0. The statement is a self-contradiction.

Incorrect.

> Is there precedent for mitigating a copyright license contract based
> on a license overeaching the scope of its authority? The licensor was
> granted a uniquely instantiated right when the copyright was
> registered. A copyright is only functional if it is solitary is it
> not? I mean you don't register "copyrights", for a single work.

Your point being?

>
> So doesn't irrevocability quash the uniqueness of that grant,

Absolutely not.

> and thus
> cause the copyright to cease to be a "copyright" by definition?

Faulty premise voids any conclusion based on ti.

> And
> if that is the case, then isn't above license, a violation of a
> regulation issued by the state,

Since the premise is not true, the any question based on that premise
is faulty. Thus the answer to the question, _as_asked_, is:
'No, there is no violation on that basis."

> by a private party without due
> process? Therefore making it... Unenforceable?

"Sorry, Charlie -- only invalid licenses get to be voided."

That grant of license is absolutely valid.

All _your_ premises and inferences drawn thereon are incorrect and invalid.

ne...@eternal-september.org

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Nov 2, 2011, 8:22:42 PM11/2/11

to

[OP asks about the Google license for some (unspecified) service.]

> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd. The above says
> that you posess the copyright but don't posess the copyright. Last
> time I checked: a + (-a) = 0. The statement is a self-
> contradiction.

Not at all. You continue to own your copyright. You have simply
granted Google the right to show your content. But their right is
non-exclusive. That is, you can _also_ allow somebody else to display,
publish, etc. your content.

You are free to make any deal you want with your remaining,
non-exclusive, rights. You can display it yourself. YOu can create new
content (derivative works) and have a new, exclusive, copyright in the
new content. If you can find somebody willing to pay for your
non-exclusive right to use your content, that's fine too.

In a sense, what Google is doing is very similar to buying somebody's
copyright, but what they buy is non-exclusive. YOu can also _sell_ your
copyright, give somebody _all_ your right *except* your moral rights
which are non-transferable. Moral rights:
1. To be identified as the author/creator of your work (except a "work
made for hire," where the person paying for the work gets the moral rights).
2. To *not* be identified as the author of works you did note create.
3. Prevent use of your name on a work that has been distorted,
mutilated, or modified in a way that would harm your reputation
4. Prevent such distortion/mutilation/modification
5. Prevent destruction of your work if of "recognized stature".

The above only applies to "visual" works, in the US. In Berne
convention countries, they apply to all works where applicable.

nos...@isp.com

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Nov 2, 2011, 8:22:43 PM11/2/11

to

ne...@google.com wrote:

> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already
> hold in Content which you submit, post or display on or through,
> the Services. By submitting, posting or displaying the content
> you give Google a perpetual, irrevocable, worldwide, royalty-free,
> and non-exclusive license to reproduce, adapt, modify, translate,
> publish, publicly perform, publicly display and distribute any
> Content which you submit, post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd. The above
> says that you posess the copyright but don't posess the copyright.

The question isn't who "possess[es]" copyright and, instead, is who
owns the copyright and to what extent including subject to what degree
or not of limitation (such as encumbering all or some portion of a
work by licensing another to use it).

Anyway, the language you quote does not say and also doesn't mean what
you characterize it as saying. Instead, it says that the creator of
the content in question retains whatever if any copyright s/he or it
has in that content but (assuming the license has been enforceably
obtained) is licensing the enterprise in question (in your example,
Google) to (re)publish/use that content in the stated manner.

> Last time I checked: a + (-a) = 0. The statement is
> a self-contradiction.

If by entering into a license the content creator who owns the
copyright therein had relinquished all of that right - i.e., had
rendered is or her or its copyright to "0" -- s/he or it will have
relinquished all (copy)right to claim infringement
- by the licensee of the work, if the licensee's use of the
work exceeded the scope of the license (re. which not that
the deliberate use of the word "Content" instead of the
Copyright Act word "work" accounts for the not uncommon
reality that posted "content" may comprise less than all of
a copyright protected "work" from which that content is
derived and also
- by third parties who are not licensees as defined by
he license to which you refer;
but you do not post actual or even hypothesized facts to the effect
that either of these alternatives apply to the person of interest to
you.

In other words if more simply while generally put, as is so for other
forms of property, to say that one owns a copyright is to refer to a
"bundle of rights" which may persist to the extent that the "bundle"
is not, if you will, de-bundled (i.e., divested in whole or in part).
And you refer here only to a license to one identified party (and,
depending on what if anything else the license says in the connection,
perhaps to that party's privities) of what may be only part of a
copyright protected work and not to a complete divestment of copyright
ownership in that work in relation to all other persons/enterprises.

> Is there precedent for mitigating a copyright license
> contract based on a license overeaching the scope of its
> authority?

This is too broad a question to enable a one-size-fits-all! answer.
The defenses to or grounds to invalidate what is claimed to be a
contract -- e.g., fraud, coercion, duress, unconscionability, etc. --
presumably are available depending on the particular facts of the
transaction. However, this history since as recently as 2002 of the
judicial and legislative evolution of contracts said to be entered
into by way of web site usage -- i.e., since Specht v. Netscape (306
F.3d 17), once the lead judicial ruling addressing how strictly
applied will be a requirement as a matter of basic contract formation
that a party receive reasonable notice of the existence of license
terms and unambiguously manifest assent thereto terms before acting on
a web page’s invitation -- is more than a little suggestive.*

------------------------------
* While Google recently encountered a serious set back in
a major copyright litigation involving its massive "Google
books" scanning project, a litigation in which lots and lots
of high-powered and well-paid attorneys participated and
which, even then, may be only a temporary or qualified
set back, presumably you can estimate for yourself
how likely it is that you would prevail in a copyright
infringement lawsuit or lawsuit by you attempting to
obtain a judicial ruling that the license to which you refer
is not enforceable.

> The licensor was granted a uniquely instantiated right when
> the copyright was registered.

Under present law, copyright (to use your word) instantiated when the
work in question was first "fixed" in reproducible form in some sort
of media even if not also then registered with the copyright office.

> A copyright is only functional if it is solitary is it
> not?

A copyright is functional in basically these two sets of
circumstances:
- if a party wishing to reproduce or otherwise use thework
unilaterally decides not to do so because, in that person's opinion,
the work is copyright protected and it does not want to ask for a
license; or
- if another person republishes or otherwise uses the work in
question without the copyright owner's permission and if that owner
learns of this and also has all of the interest and intellectual and
economic and other means to seek remedies for infringement then
actually and effectively does so.

> I mean you don't register "copyrights", for a single work.

If the creator of the original copyright protectible work has reason
to believe that it is likely to be infringed in ways for which that
person may want to seek litigated redress (e.g., because the
author/creator has reason to believe that it is financially or
otherwise valuable and wants to preserve his or her or its options in
this connection), then that person will (and many authors and artists
do) register it with the copyright office. Nor do you post any facts
to the effect that Google or any like enterprise will have required
whoever you have in mind to use its/their services.

> So doesn't irrevocability quash the uniqueness of that grant,
> and thus >cause the copyright to cease to be a "copyright" by
> definition?

No, depending on the stated/agreed scope of the license. But (by
definition) the valid/enforceable grant of a license will estop the
licensor from making an infringment claim as against (including by
suing) the licensee if the licensee does no more than use the licensed
work within the scope of the license.

> And if that is the case, then isn't above license, a violation
> of a regulation issued by the state, by a private party without
> due process? Therefore making it... Unenforceable?

If the licensor unambiguously manifested assent to the license terms,
not on the basis only of the facts as you so far post them. In other
words, (reubttably) presumptively: No.

ne...@google.com

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Nov 2, 2011, 8:22:45 PM11/2/11

to

> The above says that you posess the copyright but don't posess the copyright.

I don't see that in the text above. You're making leaps of pseudo-
logic. For example, uniqueness of ownership is not a attribute of a
copyright. Establish that first before building an argument on it.

In the end, you still own the copyright and have the ability to sell,
distribute, etc the material to anyone you please. G***** can't tell
you what to do with your material.

You are giving G***** the right to do certain things with that
material, but not everything you could do with it. For example, G*****
can't assign their license to someone else, unless that's stated
specifically in the terms of service somewhere else.

I also suspect you left out a bit of the legalese. A quick use of a
search engine shows terms of service where the above text is
immediately followed by a specification of the purpose for which the
license is necessary, without which Google could not provide a portal
into this newsgroup.

G

ne...@four.schnuerpel.eu

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Nov 2, 2011, 8:27:34 PM11/2/11

to

ne...@google.com wrote :

> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold in
> Content which you submit, post or display on or through, the Services.
> By submitting, posting or displaying the content you give Google a
> perpetual, irrevocable, worldwide, royalty-free, and non-exclusive
> license to reproduce, adapt, modify, translate, publish, publicly
> perform, publicly display and distribute any Content which you submit,
> post or display on or through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd. The above says
> that you posess the copyright but don't posess the copyright. Last
> time I checked: a + (-a) = 0. The statement is a self-
> contradiction.
>
> Is there precedent for mitigating a copyright license contract based
> on a license overeaching the scope of its authority? The licensor was
> granted a uniquely instantiated right when the copyright was
> registered. A copyright is only functional if it is solitary is it
> not? I mean you don't register "copyrights", for a single work.
>
> So doesn't irrevocability quash the uniqueness of that grant, and thus
> cause the copyright to cease to be a "copyright" by definition? And
> if that is the case, then isn't above license, a violation of a
> regulation issued by the state, by a private party without due
> process? Therefore making it... Unenforceable?
>
> Thanks!

mod-s...@uni-berlin.de

unread,

Nov 2, 2011, 8:27:34 PM11/2/11

to

ne...@google.com wrote:

> A popular web services providers license says:
>
> "11.1 You retain copyright and any other rights you already hold
> in Content which you submit, post or display on or through, the
> Services. By submitting, posting or displaying the content you
> give Google a perpetual, irrevocable, worldwide, royalty-free,
> and non-exclusive license to reproduce, adapt, modify,
> translate, publish, publicly perform, publicly display and
> distribute any Content which you submit, post or display on or
> through, the Services."
>
> I find the idea of an "irrevocable" license a bit odd.

Why is that? Normally licenses (rights granted without
consideration) are revocable. There's no reason not to ask for an
irrevocable one. The question is whether, legally, it actually is.

> The above says that you posess the copyright but don't posess the
> copyright. Last time I checked: a + (-a) = 0. The statement is
> a self- contradiction.

No, it says that you have the copyright, but google has certain,
limited rights. They can't give other people the right to violate
your copyright, for example.

> Is there precedent for mitigating a copyright license contract
> based on a license overeaching the scope of its authority? The
> licensor was granted a uniquely instantiated right when the
> copyright was registered. A copyright is only functional if it
> is solitary is it not? I mean you don't register "copyrights",
> for a single work.

pos...@giganews.com

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Nov 2, 2011, 8:27:35 PM11/2/11