encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Alexander Terekhov alexander.terekhov at gmail.com
Tue Feb 12 17:26:46 UTC 2008

On Feb 12, 2008 5:24 PM, Donovan Hawkins <hawkins at cephira.com> wrote:
> Alexander Terekhov wrote:
> >
> > The question under 17 USC
> 109 is simply whether
> > the copy was "lawfully made,"
> not who made it or
> > what made it lawful.
> A copy
> made in violation of the license terms has
> not been "lawfully
> made".

Breach of contractual right/covenant doesn't equate to "unlawful
invasion of the rights of the owner":

"Whether this constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not an
unlawful invasion of the rights of the owner."; DE FOREST RADIO TEL. &
TEL. CO. v. UNITED STATES, 273 U.S. 236 (1927)

Basically, 17 USC 109 applies to non-pirated copies (e.g. copies made
under license contract). Contractual obligations
(enforcement/compensation for breach) is subject to contract laws. Why
is it so hard to grok?

> Which brings us back to the license scope issue and
> whether lack of attribution violates copyright law, but
> the
> amicus brief by Creative Commons et al. states
> that case better than
> I could.

Lack of attribution in Jacobsen case certainly doesn't violate US copyright law.


"Moral Rights for Visual Artists

For certain one-of-a-kind visual art and numbered limited editions of
200 or fewer copies, authors are accorded rights of attribution and

BTW, regarding "soft copies"... consider:


"In DAK, Microsoft and DAK entered into a license agreement granting
DAK certain nonexclusive license rights to Microsoft's computer software.
The agreement provided that DAK would pay a royalty rate per copy of
computer software that it distributed. Subsequently, DAK filed a
petition for bankruptcy, and failed to pay the final two out of a total
of five installments. Microsoft filed a motion for the payment of an
administrative expense, claiming that it should be compensated for DAK's
post-bankruptcy petition use of the license agreement. On appeal, the
Ninth Circuit held that the economic realities of the agreement
indicated that it was a sale, not a license to use. Thus, Microsoft
simply held an unsecured claim and not an administrative expense. The
court found that the agreement was best characterized as a lump sum sale
of software units to DAK"


"Similarly, a software vendor may contractually allow use by a single
user of a copy of "Windows NT" and, in a separate transaction, deliver a
copy of "Windows NT" under a license allowing the licensee to use the
software in a 10,000 site network or allowing it to make 20,000
additional copies for commercial distribution. In the latter case, the
provider, in effect, transferred 20,000 copies in the single tangible



"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

 -- Brief of Appellees (CAFC 2008-1001).

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