Limits of Licenses

Rod Dixon, J.D., LL.M. rod at
Wed Mar 29 02:22:45 UTC 2000

You got it!

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

> -----Original Message-----
> From: cowan at
> [mailto:cowan at]On Behalf Of John Cowan
> Sent: Tuesday, March 28, 2000 12:19 PM
> To: rod at; license-discuss at
> Subject: Re: Limits of Licenses
> "Rod Dixon, J.D., LL.M." wrote:
> > When you purchase or otherwise lawfully acquire a software program,
> > copyright is not "transferred" to you.
> Agreed.
> > 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.
> Agreed.
> 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.
> Agreed.
> 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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