Copyright/abandonment [was Re: xywrite manual]

[cld@xxxxxxxx (Carl Distefano)]

Reply to notes from "Richard Henderson" 
Thu, 15 Aug 2002 21:19:54 -0400:
> The copyright laws are aimed at protecting authors',
> photographers', publishers', etc. rights in the works they
> create from piracy. As far as I can tell, they don't address
> the issue of abandonment by the copyright holders.

Ed Cray  Thu, 15 Aug 2002 19:11:09 -0700 (PDT):
> As a professional writer, I must take exception to your bizarre
> notion that an "abandoned" copyright is in the public domain.
> A copyright is "abandoned" (i.e. relinquished) only at the end
> of its term.

Norman Bauman  Fri, 16 Aug 2002 00:44:31 -0400:
> "Abandoned" doesn't mean the same thing as public domain. I'm
> saying that because it's abandoned, you could make a copy.

"J. R. Fox"  Thu, 15 Aug 2002 22:15:01 -0800:
> > Copying abandoned software and manuals is fair use. If J.D.
> > Salinger wasn't around to complain, it would be fair use to
> > copy his works too.
>
> Not really. His "heirs & assigns" (as contracts and the law
> often reads) would doubtless have something to say about that.

Patricia M Godfrey  Fri, 16 Aug 2002 11:16:12 -
0400
> 3. Abandonment is a real issue, and the law apparently takes no
> notice of it.

Actually, it is legally possible to abandon a copyright before it
expires, but it's tough to prove. The burden of proof is on the
party asserting abandonment (typically as a defense to an
infringement claim). You have to show that the copyright holder
_intended_ to abandon his rights, and that usually requires strong
circumstantial evidence (direct evidence of intent being hard to
come by). To complicate matters, the courts are divided on the
standard of proof. Some say inaction under certain circumstances is
enough; others insist on an "overt act" of abandonment.

If an owner does abandon his copyright, however, his heirs and
assignees are out of luck. Once he lets go of it, there'd be
nothing left for him to assign (transfer), and nothing for his heirs
to inherit. The work in question would indeed be in the public
domain.

--
Carl Distefano
cld@xxxxxxxx
http://users.datarealm.com/xywwweb/