Limits of Licenses

Rod Dixon, J.D., LL.M. rod at
Mon Mar 27 18:09:20 UTC 2000


You did quite well. I would like to clarify just a couple of points.
> David Johnson wrote:
> > If copyright law does not give you rights A, B and C, then you do not
> > have them unless the copyright holder gives them to you.
> Nope.  It goes like this:
> 	1) You have bought or acquired for free a certain thing.
Perhaps some of the confusion concerns the mistaken notion that ownership of the object of copyright ( a book, CD, or software program) is the same as ownership of copyright in the object.  Copyright is "owned" by the author. That's it. Period. You cannot acquire an author's copyright by buying his works. This is true regardless of whether a license is used to sell the work, although the contents of the license may affect the author's copyright.
> 	2) That gives you the ordinary rights of an owner (lots of rights),
And, those rights, whatever they are, have nothing to do with copyright. Hence, using the term "withheld" in step 3 is a little misleading in the sense that the Copyright Act does not withhold rights from users as much as it establishes rights for the copyright holder.
> 	3) ... except for the rights withheld by the Copyright Act;
> 	   you can't copy, distribute, publicly perform or display,
> 	   or make derivative works,
> 	4) ... unless the copyright holder gives you some or all
> 	   of those rights, conditionally or unconditionally.
> >  And I don't care what the judges
> > say, tearing off some plastic shrink wrap doesn't count as an agreement.
> Up till now, the judges mostly agreed with you.  UCITA is designed to
> change that.
Well, UCITA is designed to set up uniform rules for transacting in information. The common law of contracts fairly consistently has upheld contracts written on paper napkins or simply uttered between two people. I do not recall reading one court opinion that did not uphold a shrink wrap contract because the buyer had not assented to the terms of the agreement when he tore off the plastic. The shrink wrap issue you may thinking of has to do with whether the shrink wrap can modify a prior written agreement. Some unscrupulous software developers attempt to sneak in changes to written agreements on the shrink wrap. This is a no, no, and UCITA says so. 
> There is no single overt act that counts as agreeing: agreement 
> is partly judged
> by what ordinary people do in ordinary circumstances.  Sometimes 
> it requires
> a signature, sometimes not.  For example, when you drop you car off at the
> garage for repairs, you have agreed to pay for them; if you 
> don't, the mechanic
> can keep your car until you do (called a "mechanic's lien").
> > You don't buy paperback books with licenses on their inside covers that
> > say "you agree not to lend this to your friend",
> There could be no such license under copyright law, of course, 
> since lending
> out your copy (or selling it) is an ordinary part of the dominion 
> of the owner of
> the book, not the copyright owner.
In American Copyright law, the First Sale doctrine was established to cover the example you are referring to. Essentially, the first sale doctrine extinguishes the right of the copyright holder to forbid the re-sale or lending of things like books and videotapes. (BlockBuster could not exist without the frist sale doctrine). Interestingly enough, Congress exempted computer programs from the first sale doctrine. Hence, we see how books and software are treated in dramatically different ways. I doubt that mass-market EULAs would exist at all if the first sale doctrine applied to software. It is quite possible that UCITA would permit e-books to be treated like software! I think that would be tragic in the sense that publishers are very likely to exceed the necessary scope of their own protected interest. Would any lend there Stephen King e-book before it becomes illegal to do so?

Rod Dixon, J.D., LL.M.
rod at

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