Limits of Licenses

Rod Dixon, J.D., LL.M. rod at
Tue Mar 28 00:25:02 UTC 2000

> > > > Can a copyright license demand that I stop using a work that I
> > > have acquired
> > > > lawfully if I later violate the license and infringe on the
> > > copyright? Can
> > > > it demand that I destroy my copy?
> > The short answer is yes. Shareware agreements make such demands 
> frequently.
> Shareware licenses, though, are regular use licenses like EULAs; 
> they don't
> have the special flavor of "conditional non-exclusive transfer of 
> copyright".
Oops! We are making repeated mistakes. Copyright belongs to the copyright holder. Copyright belongs to the copyright holder. Let's at least understand the signifance of this point. When you purchase or otherwise lawfully acquire a software program, copyright is not "transferred" to you. The copyright holder (which is NOT the User) may permit certain uses of his or her work, but the user never becomes a copyright holder merely because of use or purchase. Even under the GPL, subsequent users of the source code are NOT copyright holders. Copyright remains with the owner of the copyright. This is an awfully important point to understand before the rest of what we are talking about begins to make sense.
> > Sure, you can. You can also use self-help measures to protect 
> your copyright.
> How's that?  Do you really think the following notice printed on a book's
> cover would stand up?
> 	"You may make a single Xerox copy of this book and give it
> 	to your spouse, if you have one.  If you make any other copies,
> 	however, you are required to burn them all, and this copy too."

Well, as I said, if the book were an e-book, the statement could possibly be permissible...with two notable differences "Photocopy would be substituted for Xerox (Trademark), and destroy would be substituted for burn. (Look at the model draft of UCITA and make your own conclusions)
> I suggest that the last four words are not enforceable.  You have lawfully
> acquired your copy, and you get to keep it.  Still less can the copyright
> holder seize your purchased copy and burn it, just because you 
> have violated
> his copyright.

UCITA and the DMCA permit self-help remedies. I am surprised you have not heard of this sense there is a great deal of self-help going on in Cyberspace these days. Nonetheless, I would almost never advise a client to undertake a self-help remedy. I think they are in poor taste and there is the risk that more harm is done than can be foreseen. 

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