[linux-elitists] Copyright, loss of enforcement rights (was: MP3 patents)

Karsten M. Self kmself@ix.netcom.com
Fri Sep 7 11:22:50 PDT 2001


on Tue, Sep 04, 2001 at 05:42:44PM -0700, Rick Moen (rick@linuxmafia.com) wrote:
> begin M. Drew Streib quotation:
> 
> > I'd appreciate a link to this license grant. One does not need to show
> > a pattern of enforcement in patents, unlike copyright or trademark
> > infringements, so an implied license or lack of enforcement up to this
> > point probably doesn't do us much good.
> 
> It's been too long since my classes in business law, so I can't recall
> clearly:  Can you actually lose US copyright by not opposing infringers?
> I'm not finding that in 17 USC.

#include ianal.h

No.

Neither copyright nor patent rights are weakened for *future* actions by
non-enforcement, barring a few boundary cases involving estoppal and
laches [1].  There are statutes of limitation in enforcement of patent,
IIRC six years from infringing action.  There is similarly a statute of
limitations under copyright for criminal penalties of 5 years, and of
civil actions of three years[2].  An act of infringement would be one of
the exclusive rights enumerated in 17 USC 106 and 106A.  So, for any
ongoing infringement, there is a current right of enforcement.

Right of instituting an action under copyright is available, if I read
statue correctly, to a "legal or beneficial owner of an exclusive
right"[3], I'm not sure how this plays in the case of multiple or joint
ownership of works, though the general advice I've heard given is that
joint ownership makes legal action more difficult as all owners must
aggree to the action.

Note too under copyright that criminal penalties, and certain civil
damages, require registration of copyright with the US Copyright Office,
a division of the Library of Congress.

--------------------
Notes:

1.  Essentially:  a change in actions of such a nature that an implicit
    understanding of prior terms has substantively changed.  Relatively
    rare and extreme, though not untenable.

2.  17 USC 507 (a) and (b), Limitations on actions
    http://www4.law.cornell.edu/uscode/17/507.html

	(a) Criminal Proceedings. - Except as expressly provided
	otherwise in this title, no criminal proceeding shall be
	maintained under the provisions of this title unless it is
	commenced within 5 years after the cause of action arose.

	(b) Civil Actions. - No civil action shall be maintained under
	the provisions of this title unless it is commenced within three
	years after the claim accrued.


    See also:
	17 USC 501, Infringement of copyright.
	17 USC 504, Remedies for infringement, Damages and profits
	17 USC 505, Remedies for infringement, Costs and attorney's fees
	17 USC 505, Criminal offenses

3.  17 USC 501(b) 
    http://www4.law.cornell.edu/uscode/17/501.html 

	The legal or beneficial owner of an exclusive right under a
	copyright is entitled, subject to the requirements of section
	411, to institute an action for any infringement of that
	particular right committed while he or she is the owner of it.

-- 
Karsten M. Self <kmself@ix.netcom.com>          http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?             There is no K5 cabal
  http://gestalt-system.sourceforge.net/               http://www.kuro5hin.org
   Free Dmitry! Boycott Adobe! Repeal the DMCA!    http://www.freesklyarov.org
Geek for Hire                        http://kmself.home.netcom.com/resume.html
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