Copyright vs? Click-wrap "contract"

[John Cowan]

Brendan Hide scripsit:

> You have the right to do anything with a copyrighted work only if you 
> have agreed and complied with (and read) the license.

Not at all.  You have hold of the wrong end of the stick altogether.

When you buy a book, you have the right to read the book silently or
out loud (but not to an audience), you can act on the information it
gives you, you can study it to see how it is written in the hope of
writing a better book yourself, you can even write a different book
based on the same facts expressed differently, and scurvily give the
author no credit whatever.  You may write and publish a review praising
or condemning the book in almost unlimited terms.

On a less intellectual plane, you may set the book on fire, or use it
to insulate your basement or to check erosion in a gully.  You may give
or sell it to anyone you please, or leave it around in public (absent
littering laws) for the delectation of the next person to pick it up.
You may lend it to your friends or the public, though you may have
problems if you take money for this.

All of this applies equally to movies, sound recordings, sculptures,
magazines, computer programs, and any other copyrightable works.
For computer programs, you also have the (U.S.) statutory right to make copies
reasonably necessary for the use of the program or for backup.

Copyright gives the author five and only five rights:

	to control the making of copies
	to control the making of derivative works
	to control the distributing of copies and derivative works
	to control the public performance of the work
	to control the public display of the work

(There may also be "moral rights" that depend on the country.)

> If you have not read the license, then you are not aware of your rights 
> to the work and you should assume that you have no rights over the work, 
> bar the fair use rights given to you by the law and international treaties.

You should assume that you don't have any of the above five rights.
But you have all the other rights of an owner over the work.
(This assumes that you had no opportunity to read the license, or that
you were merely invited to do so.  Whether you *actually* read it is
neither here nor there.)

> Imagine you pick up some software from a store, but the box contains 
> everything except the license. Do you have the right to use the 
> software? Legally, you need to secure a license before you can use the 
> software. Of course, nobody would, in their right mind anyway, sue you 
> for using the software you paid them for.

More than that.  If you buy software in a box, and there is no license,
that software is *yours*, and you can do anything you like that does
not breach the above five rights.  In particular, you can install it on
as many computers as you like, for while this is copying, it is copying
necessary to use.  (IANAL, TINLA.)  If the maker wants to restrict your
behavior in this respect, he must get you to assent (generally by conduct,
such as ripping open the envelope with the license on the outside and
the disks on the inside) to a more restrictive contract.

> If the license gives you secondary rights, then you have to read that 
> license in order to "get" those rights. If a user claims that there was 
> no assent that the user agreed with the license, because the license was 
> not presented to them, then there was no assent from the author that the 
> user can *use* the work either.

No such assent by the author is required.  The author must convince the
user to contract away his rights.

> Fair use laws give the user some basic 
> rights but that is it.

Fair use (called "fair dealing" in some countries) gives you the right to
do things that are normally reserved to the author; it is a defense against
copyright infringement.  If I write a review of your book and quote it
to show what rubbish it is, that is (almost certainly) fair use, e.g.
In the U.S., fair use is explicitly undefined and must be decided case-by-case,
though the statute gives some guidelines that the court must consider.
Most Commonwealth and European countries take a narrower view, though
research and criticism are almost always exempted.

-- 
Deshil Holles eamus.  Deshil Holles eamus.  Deshil Holles eamus.
Send us, bright one, light one, Horhorn, quickening, and wombfruit. (3x)
Hoopsa, boyaboy, hoopsa!  Hoopsa, boyaboy, hoopsa!  Hoopsa, boyaboy, hoopsa!
  -- Joyce, _Ulysses_, "Oxen of the Sun"       jcowan at reutershealth.com
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