Limits of Licenses
Rod Dixon, J.D., LL.M.
rod at cyberspaces.org
Wed Mar 29 02:22:45 UTC 2000
You got it!
Rod Dixon, J.D., LL.M.
www.cyberspaces.org
rod at cyberspaces.org
> -----Original Message-----
> From: cowan at mail.reutershealth.com
> [mailto:cowan at mail.reutershealth.com]On Behalf Of John Cowan
> Sent: Tuesday, March 28, 2000 12:19 PM
> To: rod at cyberspaces.org; license-discuss at opensource.org
> 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
> http://www.loc.gov/copyright/circs/circ92.pdf), 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 reutershealth.com>
> Schliesst euer Aug vor heiliger Schau, || http://www.reutershealth.com
> Denn er genoss vom Honig-Tau, || http://www.ccil.org/~cowan
> Und trank die Milch vom Paradies. -- Coleridge (tr. Politzer)
>
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