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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.
An implied copyright license is a license created by law in the absence of an actual agreement between the parties. Implied licenses arise when the conduct of the parties indicates that some license is to be extended between the copyright owner and the licensee, but the parties themselves did not bother to create a license. This differs from an express license in that the parties never actually agree on the specific terms of the license. The purpose of an implied license is to allow the licensee (the party who licenses the work from the copyright owner) some right to use the copyrighted work, but only to the extent that the copyright owner would have allowed had the parties negotiated an agreement. Generally, the custom and practice of the community are used to determine the scope of the implied license.
Implied licenses have been used to grant licenses in situations where a copyrighted work was created by one party at the request of another. In one case, a special effects company was hired to create a specific effect for a horror movie. The contract through which the special effects company was hired did not assign the copyright in the effect, and did not provide for a license for the effect to be used in the horror movie. The court ruled that the effect could be used in the horror movie through an implied license, since the effect was created with the intent that it be used and distributed in the movie.
A commonly discussed scenario where implied licenses are destined to play a major role is on the World Wide Web. When a Web page is viewed in a Web browser, the page is downloaded through the Internet and placed on the user's screen. It is clear that a copy of the Web page is being made by the user. It is also clear that the Web page is protected against unauthorized copying by copyright law. But it would not make sense to allow the author of a Web page to sue a user who viewed her page, since the author intended that the page be viewed by others when she placed it on the World Wide Web. Rather, attorneys argue, courts should find that the Web page author has given end users an implied license to download and view the Web page. The extent of this implied license is unclear, and may someday be defined by the courts.
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