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If I understand correctly, it is possible to release copyrighted works under a public license (such as an open-source software license) upon one's death by stating this in a will. Can it be done without a will, by simply making the license take effect upon the author's death?

For example, is this valid?

Copyright © 2023 John Doe

Effective immediately upon my death, you can redistribute this program and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation, either version 3 of the License, or (at your option) any later version.

This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.

You should have received a copy of the GNU General Public License along with this program. If not, see https://www.gnu.org/licenses/.

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    Good question. I have the feeling that wouldn't work, because it has a similar effect than a will, and hence would need to have the form of a will (e.g. written by hand, with witnesses, etc.). Also, assuming the software in question has some economic value, this deprieves your heirs from that.
    – PMF
    Sep 11, 2023 at 6:12
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    @PMF in what jurisdiction is a will required to be written by hand with witnesses?
    – phoog
    Sep 11, 2023 at 6:24
  • @phoog - many? Germany has a handwritten-will rule, a "witnessed and signed" rule and a "signed and notarized" rule, and some others...
    – Trish
    Sep 11, 2023 at 7:15
  • @phoog Switzerland is mostly the same as germany. The will needs to be made orally in front of two witnesses and an advocate or in handwriting and deposited at a known location.
    – PMF
    Sep 11, 2023 at 8:37
  • @Trish Queensland will let you make a will by SMS in certain circumstances
    – Dale M
    Sep 11, 2023 at 10:21

2 Answers 2

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+100

There are two main questions here:

  1. Can you direct your estate to apply a copyright license to your work?
  2. Is the resulting license irrevocable?

In the case of (1), the answer is very likely "yes," but you should consult an estate attorney about forming a trust or trust-like entity to hold and (possibly) administer the copyright. Simply directing the estate to apply a license to the copyright may not be effective, because a copyright license is not considered a transfer of property, and an estate is not an appropriate vehicle for applying such licenses.

In the case of (2), this is a complicated mess because of 17 USC 203. In short, you must hold the copyright personally until you die, and then bequeath it to the trust (or other entity) in your will. Some estate attorneys will try to transfer the copyright into the trust before you die. That doesn't work correctly, because the transfer is not pursuant to a will and does not qualify as a bequest. As a result, it is not eligible for the exemption in the aforementioned law, and so it gives rise to so-called "termination rights." Termination rights will eventually entitle your surviving children and/or spouse to revoke the copyright transfer to the trust and any licenses the trust has subsequently issued. Termination rights cannot be assigned or disposed of in your will - they are always inherited by the surviving spouse or children (or by various other people such as your executor, if you have no surviving spouse or children). They also cannot be waived by any provision of the license (the GPL doesn't even try, nor do any other well-known licenses, because the statute explicitly says that such waivers have no effect). There is little case law as to how termination rights affect licenses offered to the general public, such as the GPL, but there is no provision in law barring their application, except that the termination must identify the specific grantee whose rights are terminated. This likely makes it impractical to terminate all instances of the license, but even one well-placed termination of a large company's GPL rights might be enough to destroy an open source project, if that company provides most of the developers for that project.

Note that termination rights apply to all copyright licenses and transfers, except for bequests by will and works for hire. Any time you place any copyrighted work under any license, or transfer it by any means other than a bequest or a work-for-hire arrangement, it always gives rise to these termination rights, so there's nothing special about the "apply a license after I die" fact pattern, other than the bequest exception. For further discussion of this issue, see my answer on Open Source.SE.

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  • How would my scenario involve directing my estate to do anything? The idea is that I'm agreeing to the license now, but making it take effect contingent on a future event.
    – Someone
    Nov 17, 2023 at 1:27
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    @Someone: As stated in the last paragraph, any license gives rise to termination rights, unless it is done through a bequest. Unless you want your heirs and descendants second-guessing your licensing choices, you should do this through your estate.
    – Kevin
    Nov 17, 2023 at 2:02
  • I should be able to write a license "until Dec 31st 2029 you have these rights, after that you have more rights". I should be able to write a license "until the date of death of Donald Trump you have these rights, after that you have more rights" Then I should be able to write a license "until the date of my death you have these rights, after that you have more rights". Or is there a reason why I can't do any of these three?
    – gnasher729
    Nov 18, 2023 at 12:56
  • @gnasher729: You can do that, but if you die within 35 years, your heirs can change their minds about it, unless it is properly bequeathed in a will as explained in this answer. The only other truly irrevocable workaround is to incorporate and have the copyright be owned by an LLC or something as a work-for-hire - but you have to do that before the copyrighted work is created, and it is frankly quite a bit more complicated to get right.
    – Kevin
    Nov 18, 2023 at 17:14
  • @Kevin So you are saying that any irrevocable GPL license can be revoked tomorrow if the copyright holder is an individual and dies?
    – gnasher729
    Nov 19, 2023 at 8:25
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In the United States, one may hold a copy right for the lifetime of the author plus 70 years after their death OR 95 years from date of publication to 120 years from date of creation, whichever is first for a work that was created as a work for higher. After that, the work enters the Public Domain.

In the case of the former, when the creator dies, the copyright is transferred to a living person who will typically be called "The Estate of [Author's Name]" who will handle the copyright property on behalf of the original author. There is no law preventing the author for making the copyright open source or public domain upon their death any more than there are laws regarding these actions in life.

The current laws regarding this can be found in the Copyright Act of 1976 as amended.

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