Limits of Licenses

John Cowan jcowan at
Tue Mar 28 17:18:36 UTC 2000

"Rod Dixon, J.D., LL.M." wrote:

> 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.


On reading through the relevant parts of Title 17 (available at, I find that the
term "non-exclusive transfer of copyright" has been amended out of the
1976 Act (and a good thing too, as it was damnably confusing) in favor
of "non-exclusive [copyright] license".  I will use this term henceforth.

> 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.

I do understand it.

BTW, I note that nothing in the Act seems to prevent you from selling
your lawfully acquired computer program, unless you are bound by contract
not to (as you generally are with proprietary software).  Renting or
leasing or lending a program (or a sound recording) for commercial advantage are
specially forbidden by sec. 109(b)(1)(A), but not outright sale.
The outright sale of a particular copy of a copyrighted work by the owner
of the copy is permitted in general by 109(a).

The copy of Title 17, Chapters 1-8 and 10-11 (aka the Copyright Act)
from which I am working explicitly excludes the effects of the
Digital Millennium and Sonny Bono Copywrong Acts, so I don't know how
they may affect this point, if at all.  A cursory look suggests there
is no change.

> Photocopy would be substituted for Xerox (Trademark),

Picky, picky, picky.  :-)

> 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.


To summarize:  I think the GNU GPL and the other free/open-source software
licenses are non-exclusive copyright licenses with conditions: they allow
you (anyone) to take certain actions that would otherwise be forbidden by
the Copyright Act, provided certain conditions are met (exactly what the
conditions are is the meat of each license).

Actions other than those derogating the exclusive copyright-holder
rights mentioned in the Act (roughly: copying, distributing, public performance,
making derivative works) are not subject to the control of the license.
General remarks like "You may not use the work except as provided by this
license" are not operative.

Finally, the consequences of violation
are basically limited to a copyright-infringement suit.  (Plus bad
publicity, angry letters, and other non-legal consequences, of course.)

You agree with the first paragraph above, but think that open-source/free licenses
are also EULA-style shrink-wrap contracts, opening up the way to other kinds of restrictions and other kinds of non-copyright damages.

Is that a fair summary?


Schlingt dreifach einen Kreis um dies! || John Cowan <jcowan at>
Schliesst euer Aug vor heiliger Schau,  ||
Denn er genoss vom Honig-Tau,           ||
Und trank die Milch vom Paradies.            -- Coleridge (tr. Politzer)

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