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Many open source software licenses, such as the Apache 2.0, the GPL ver 3, the EUPL ver 1.2, the OSL ver 3.0, and other copyleft licenses such as the CC-BY-SA 2.0 license purport to provide a license that is "irrevocable", "permanent" or lasts for the full duration of the copyright protection. In general, such licenses state that the author or copyright holder cannot cancel the license grants. Is this correct under US Copyright law?

(Note, the above is only a selection, various other licenses contain similar terms on this point.)

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Not under US law

Under the US copyright law, specifically 17 USC 203:

a) Conditions for Termination.—In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

The conditions are somewhat complex, and I will not quote them here. The author or authors, or the heirs of the author or authors, or a majority of them, have the right to terminate copyright transfers an license grants. This termination must be effective on a date within a five-year period starting 35 years after the transfer or grant was made, or 35 years after publication. There must be a notice of intent to terminate, sent at least 2 and not more than 10 years before the effective date of termi\nation.

Section 205 (a) (5) provides that:

(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

Section 205 (b) provides that:

(b) Effect of Termination.—Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests ...

...

(4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).

Summary

Under US copyright law the author, co-authors, or the heirs of the author(s), or a majority of them may cancel a license during a specific five-year period No provision in the license or other agreement may waive this right, or bind the author not to exercise it. Open source and copyleft licenses generally do not mention this legal right of the author. Derivative (modified) works created under a canceled license may continue to be used, but the right to create new derivative works is withdrawn.

It is not clear how an author goes about sending the required notice when a work was distributed widely to the general public under a permissive license.

Open source licenses have been around long enough that early license grants could be subject to such terminations. But I have found not news reports or court cases about such terminations or attempted terminations and their effects. Probably most authors of open source software will not want to terminate the licenses they once granted. But some may, and US law gives them the right to do so. Users of software or other protected content under such licenses should be aware of these termination rights.

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  • Why do you not discuss the literature / law on bare licenses, i.e. "lack of consideration"?
    – user6726
    Apr 10 at 15:55
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    @user6726 because that does not seem relevant to the ability of the author to cancel the license. It is an interesting but quite separate issue, unless I have missed something. Why do you think it is relevant to this answer? Apr 10 at 15:59
  • It's central to the contract theory of licenses.
    – user6726
    Apr 10 at 17:46
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    @user6726 But 17 USC 203: applies whether a license is considered to be a contract or a non-contract grant. It is explicitly illegal to waive it by prior contract. So i can't see that the status of a license as a contrast makes any difference at all for this issue. If you think it does, please write an answer that shoes how. Apr 10 at 17:54

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