RealNetworks' RTSP Proxy License

[Humphreys, Noel]

This is not legal advice, and you are not entitled to rely on this for
any purpose.  I merely suggest these thoughts to help the discussion
along.

Copyright law empowers an author to restrict others from copying the
work.  A user therefore wants the license to allow the user to copy
the work.  In software terms, copying occurs when the user's hard
drive or RAM receives or records the software, for example.

Copyright law empowers an author to restrict others from making copies
of the work to distribute to others.  A user therefore wants the
license to allow the user to make copies for distribution to others.
Open source licenses need to allow users to make copies for
distribution to others on limited terms (for example, source code must
accompany the copy).

Copyright law empowers an author to restrict others from making
derivative works based on the original work.  An open source license
needs to permit the users to make changes to the original code, which
is the "work," in copyright terms.  The result of the changes is a
"derivative work."

Copyright law empowers an author to restrict others from displaying or
performing the work in public.  A user wants to know that the license
authorizes the user to display or perform the work---the code---in
public.

Copyright words were not first written with software in mind, and the
fit isn't comfortable when you try to shoehorn computer software into
copyright language.  "Use" is not a copyright concept.

These licenses are usually analyzed as bilateral contracts, in
contract lawyer terms.  Each side gives up something of value.  The
licensor, for example, gives up the legal right to charge for
distribution of the code or, for example, the right to keep others
from changing the code.  The licensee gives up, for example, the right
to charge subsequent users for the source code or the right to
distribute in object code form only.  "Consideration" need not be
money.

The more prominent or unmistakable the licensee's assent to the terms
of the license, the more likely it is that a court would find that the
licensee is bound by the terms of the license.  If you make the
licensee push the "Yes, I accept" button three times after scrolling
through the license before he is allowed access to the code, a court
is more likely to find that he is subject to the terms of the license
than in a case where the user can have access to the code in a manner
that does not call attention to the limits on the user's rights in
relation to that code.

There can be no assurance that a court would find that a simple
statement to the effect that use of the code constitutes acceptance of
the license terms will be effective to bind the user.  The parties
gain confidence in the likely effectiveness of the license by making
the statement more prominent.  The statement may be thought more
prominent if it appears in all caps or in red or in bigger letters or
first, for example.

I hope that's helpful.



-----Original Message-----
From: Matthew C. Weigel [mailto:weigel+ at pitt.edu]
Sent: Friday, September 07, 2001 4:14 PM
To: license-discuss at opensource.org
Subject: Re: RealNetworks' RTSP Proxy License


On Fri, 7 Sep 2001, Jeffry Smith wrote:

> OK, not being a lawyer, I may not have the full grasp, but from my
> one term of Business Law, I don't see how a license is enforceable
> EXCEPT under contract law.  Nothing in Copyright Law specifies the
> "Licenses" (at least what I've read of the 1976 law and the DMCA),
> only what the default rights of the parties are.

I don't mean to make specific factual legal claims, but I was under the
impression that a license is a "grant" of rights.  Copyright law
specifies default rights of all parties, and - importantly - the
ability for the various parties to grant rights they hold to other
parties.

For instance, it makes little sense that there must be a contract for a
copyright holder to grant any user the right to copy and distribute
their publication (I've seen stuff like this from some of the lovely
street-side preachers here in town, who *really* want to get their
message out).

It seems to also make sense that such grants could be subject to
restrictions, i.e., only granting a 'part' of the right.

It further seems reasonable that this freeform grant of rights would
have developed its own body of law, and come to be known as licenses
whether copyright law actively addresses it or not.

However, this is definitely beyond me, and I am hoping to be corrected
(at least on my grossest errors).
-- 
 Matthew Weigel
 Research Systems Programmer
 mcweigel at cs.cmu.edu ne weigel at pitt.edu

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