Use Restrictions and UCITA

[Carol A. Kunze]

"Lawrence E. Rosen" wrote:

> Carol,
>
> You made two statements in recent emails with which I must take
> exception.  The first dealt with the currently circulating proposals to
> add an OSD provision to prohibit certain restrictions on use.  You
> wrote:
>
>   Why not subsume elements 5 and 6 of the OSD within
>   a broader element which prohibits any discrimination
>   against use, including use for any reason or by anyone.
>
> Your proposal would prevent most patent grants in open source licenses,
> because patents are granted for *use*, and all patent grants I've seen
> so far are field-of-use restricted.  The open source community would be
> far worse off without grants of patent rights.
>
> So, too, are defensive suspension provisions a (possible) restriction on
> use in the event of a (future) patent lawsuit.  Is an export clause that
> requires the licensee to obey his country's laws?  Is a requirement that
> the user not remove copyright notices?  Is a government restricted
> rights statement?  What about licenses like the AFPL that grant
> different rights for R&D purposes?
>
> And far more serious a problem would be some of the recent proposals to
> impose source code reciprocity obligations when software is *used* to
> deliver services or content over the Internet.  While such proposed
> license provisions are couched in terms like "externally deploy," they
> are indeed limitations on the right of a company to use the software
> without actually copying and distributing it.
>
> We must be careful in drafting a use-related provision of the OSD so
> that we don't kill the patient while we treat him.

I did not mean to imply that there should not be exceptions.  It is more a
question of approach.  You can list all the use restrictions that are not
allowed, with the implication that anything not listed is allowed.  Or you
can take the position that use restrictions are not allowed, with some
necessary listed exceptions.

>
>
> Your second statement dealt with a new provision in UCITA.  You wrote:
>
>    UCITA now acknowledges notice licenses based on IP
>    rights that are not contracts and notes that UCITA
>    does not apply to the terms of such a notice.
>    The language is:
>
>    "Section 105(d) [Intellectual Property Notices]
>    This [Act] does not apply to an intellectual
>    property notice which is based solely on
>    intellectual property rights and is not part of
>    a contract. The effect of such a notice is
>    determined by law other than this [Act]."
>
> This late addition to UCITA is a whitewash and legally meaningless.  It
> would be like saying that UCITA does not apply to a first amendment
> right, or to the NAFTA treaty.  As you know, federal copyright law
> preempts state contract law, and so nothing "based solely on
> intellectual property rights" (assuming UCITA means "copyright" or
> "patent" but not also "trade secrets") could possibly be affected by
> UCITA -- regardless of whether the UCITA drafters put their blessing on
> it.
>

Section 105(d) was not intended to change the law, which is why I said it
"acknowledges" notice licenses rather than validates them.    However, it
may lead to a better understanding of the non-contractual GPL, which in my
experience is not well understood in the legal industry.   It may also help
to cut short a litigant's attempt to import all the UCITA license default
rules into a non-contracual GPL.

Carol


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