RealNetworks' RTSP Proxy License
reagle at w3.org
Fri Sep 7 23:27:19 UTC 2001
On Friday 07 September 2001 14:48, John Cowan wrote:
> Contracts are bilateral in the sense that they are founded on an offer
> and an acceptance. Open source licenses generally tell you that you
> may do certain things (otherwise forbidden by statute) on certain
> conditions. If you don't do the things, the license doesn't accept you.
To state my (no doubt flawed) understanding then:
In ProCD v. Zeidenberg  the court found that while Zeidenberg was *not*
restricted by copyright law from posting the factual information from the
CD on the Web, he had entered into an orthogonal contract when he obtained
that information that restricted his use of this material to that end. So
he had volunteered (given the upholding of the legitimacy of shrinkwrap)
something he had (the ability to post factual information) via contract in
order to access it in the first place:
But whether a particular license is gen-
erous or restrictive, a simple two-party contract is not
"equivalent to any of the exclusive rights within the gen-
eral scope of copyright" and therefore may be enforced. 
(There's a number of cases that differ with respect to where on the page,
or how prominent the notice of contract is , including Specht v.
Netscape, but they don't seem to mitigate the trend of "shrinwrap"
With the GPL, I have no right to make a copy regardless, and the license
grants me that right given certain terms and conditions. So it's the
inverse of the shrinkwrap scenario in that I am a "complete stranger" to
the FSF (or whomever) and there is no actual contract...?
BTW: Interesting reading:
Whether there are legal differences between "contracts"
and "licenses" (which may matter under the copyright
doctrine of first sale) is a subject for another day.
See Microsoft Corp. v. Harmony Computers & Electronics,
Inc., 846 F. Supp. 208 (E.D. N.Y. 1994).
Microsoft Corp. v. Harmony Computers & Electronics, Inc., 846 F. Supp.
208 (E.D. N.Y. 1994).
Defendants argue, however, that because the Products they sold were
purchased from Microsoft licensees, they are immune from liability for
copyright infringement under the first sale doctrine. In response,
plaintiff argues that the first sale doctrine does not apply to the present
case because Microsoft never sells but rather only licenses its Products.
To the extent that defendants bought their [**15] Microsoft Products from
authorized Microsoft licensees, they were subject to the same licensing
restrictions under which those licensees operated.
Finally, plaintiff's claim that defendants exceeded the scope of its
license [**19] agreements states a claim for copyright infringement
rather than breach of contract. Not being parties to any license agreement
with Microsoft, defendants are "complete strangers" to Microsoft, and their
violations of the licensing restrictions must of necessity be seen as
claims arising under the copyright laws rather than the law of contracts.
See Marshall v. New Kids on the Block Partnership, 780 F. Supp. 1005, 1008
(S.D.N.Y. 1991). Even if defendants were seen as parties to Microsoft's
license agreements, their undisputed distribution of Products outside the
scope of the license agreements puts them in the same position as an
infringer having no contractual relationship with the copyright holder and
again makes them "strangers" to Microsoft. Id. at 1009; Kanakos v. MX
Trading Corp., 1981 WL 1377, *2 (S.D.N.Y. Sept. 16, 1981). Accordingly,
plaintiff's allegation that defendants exceeded the scope of the license
agreement states a claim for copyright infringement.
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