The myth of copyright license permissions

[dlw]

Why won't the myth of the "non-contractual" copyright license ever
die? It's like a cat with 999 lives.

The Supreme Court in 1908 interpreted the scope of the copyright
monopoly granted by Congress. The decision was BOBBS-MERRILL CO.
v. STRAUS, 210 U.S. 339 (1908).

One observation of the Court concerned copyright and patent
differences

"We may say in passing, disclaiming any intention to indicate our
views as to what would be the rights of parties in circumstances
similar to the present case under the patent laws, that there are
differences between the patent and copyright statutes in the
extent of the protection granted by them. This was recognized by
Judge Lurton, who wrote a leading case on the subject in the
Federal courts (Button Fastener Case, supra), for he said in the
subsequent case of John D. Park & Sons Co. v. Hartman, 12
L.R.A.(N.S.) 135, 82 C. C. A. 158, 153 Fed. 24: [210 U.S. 339,
346]    'There are such wide differences between the right of
multiplying and vending copies of a production protected by the
copyright statute and the rights secured to an inventor under the
patent statutes, that the cases which relate to the one subject
are not altogether controlling as to the other.'"

The relevant statute in 1908 concerning "multiplying and vending
copies of a production protected by the copyright statute" was:

'Sec. 4952. Any citizen of the United States or resident therein,
who shall be the author, inventor, designer, or proprietor of any
book, map, chart, dramatic or musical composition, engraving, cut,
print, or photograph or negative thereof, or of a painting,
drawing, chromo, statute, statuary, and of models or designs
intended to be perfected as works of the fine arts, and the
executors, administrators, or assigns of any such person, shall,
upon complying with the provisions of this chapter, have the sole
liberty of printing, reprinting, publishing, completing, copying,
executing, finishing, and vending the same.' U. S. Comp. Stat.
1901, p. 3406.

Today's counterpart is section 106 of the Copyright Act.

The Court noted that the scope of the ruling extended beyond
merely "vending" and was decided in light of its main purpose
--- that of "multiplying copies":

"The precise question, therefore, in this case is, Does the sole
right to vend (named in 4952) secure to the ownerof the copyright
the right, after a sale of the book to a purchaser, to restrict
future sales of the book at retail, to  the right to sell it at a
certain price per copy, because of a notice in the book that a
sale at a different price will be treated as an infringement,
which notice has been brought home to one undertaking to sell for
less than the  named sum? We do not think the statute can be given
such a construction, and it is to be remembered that this is
purely a question of statutory construction. There is no claim in
this case of contract limitation, nor license  agreement
controlling the subsequent sales of the book. In our view the
copyright statutes, while protecting the owner of the copyright in
his right to multiply and sell his production, do not create the
right to impose, by notice, such as is disclosed in this case, a
limitation at which the  book shall be sold at retail by future
purchasers, with whom there is no privity of contract. This
conclusion is reached in view of the language of the statute, read
in the light of its main purpose to secure the right of
multiplying copies of the work,-a right which is the special
creation of the statute. True, the statute also secures, to
make this right of multiplication effectual, the sole right to
vend copies of the book, the production of the author's thought
and conception."

It is crystal clear from the Supreme Court's holding that "the
right of multiplying copies of the work,-a right which is the
special creation of the statute" is constrained by the requirement
of "privity of contract".

The Supreme Court has never revisited this "privity of contract"
principle nor has Congress ever denied it. Congress did embrace
this constraint in section 109(a) of the modern day law. No
Federal appellate court has ever contradicted this restriction on
the copyright monopoly.

It seems that Richard Stallman has been very successful in
creating an a modern urban legend.

 


 

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