Last updated February 22, 2010
In an exclusive license, the copyright holder permits the licensee to use the protected material for a specific use and further promises that the same
permission will not be given to others. The licensee violates the copyright by exceeding the scope of this license.8 The writing requirement serves
the goal of predictability and certainty of copyright ownership. Effects, 908 F.2d at 557.
By contrast, in the case of an implied nonexclusive license, the licensor-creator of the work, by granting an implied nonexclusive license, does not transfer ownership of the copyright to the licensee. The copyright owner simply permits the use of a copyrighted work in a particular manner. In contrast to an exclusive license, a "nonexclusive license may be granted orally, or may even be implied from conduct." Melville B. Nimmer & David Nimmer, 3 Nimmer Sec. 10.03[A] at 10-40.1; see also MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 778-79 (3d Cir.1991); Effects, 908 F.2d at 558. Nimmer explains that a nonexclusive license "is not expressly provided in the statutory text, but is negatively implied from the fact that a 'transfer of copyright ownership,' which by definition does not include nonexclusive licenses (see 17 U.S.C. Sec. 101) must be by written instrument." 3 Nimmer Sec. 10.03[A] at 10-40.1 n. 19. A nonexclusive license is, therefore, an exception to the writing requirement of section 204. In fact, consent given in the form of mere permission or lack of objection is also equivalent to a nonexclusive license and is not required to be in writing.9 Although a person holding a nonexclusive license has no standing to sue for copyright infringement, Paul Goldstein, I Copyright: Principles, Law and Practice Sec. 18.104.22.168, at 409 (1989), the existence of a license, exclusive or nonexclusive, creates an affirmative defense to a claim of copyright infringement. Effects, 908 F.2d at 559. The concept of an implied nonexclusive license has been recognized not only by Nimmer, a preeminent treatise on copyright law, but also by the courts, including this one, which universally have recognized that a nonexclusive license may be implied from conduct.10 Indeed, implied licenses11 are like implied contracts, which are well recognized in the field of architecture.12 As the district court noted, the Ninth Circuit, in Effects, held that an implied nonexclusive license has been granted when (1) a person (the licensee) requests the creation of a work, (2) the creator (the licensor) makes that particular work and delivers it to the licensee who requested it, and (3) the licensor intends that the licensee-requestor copy and distribute his work. Effects, 908 F.2d at 558-59.
What you need to know as a content provider, presenter, or author. When you put your work on the web, this act constitutes an "implied license" to allow access to that work through normal web usage patterns, i.e., reading, viewing, or listening to that work.
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