[License-discuss] Reverse Engineering and Open Source Licenses

[cowan at ccil.org]

Pamela Chestek quotavit:

> 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.

In licensed software, however, there *is* privity of contract.

> Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (U.S. 1908).

I think the Supremes would consider that case irrelevant today if they
had the opportunity to overrule it, because it depends on the
exclusive right to vend that is conferred in the 1831 Act and in the 1909
Act, but not present in the 1976 Act.

> So at least they'd have to shrink-wrap it ---

Naah.  If anything, shrink-wrapping makes it harder, not easier, to
show the licensee's consent to the contract.  If the license were
printed on the cover, the supposed buyer would be in a pickle
trying to prove that paying the price didn't constitute acceptance
of the license.

-- 
John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
The Penguin shall hunt and devour all that is crufty, gnarly and
bogacious; all code which wriggles like spaghetti, or is infested with
blighting creatures, or is bound by grave and perilous Licences shall it
capture.  And in capturing shall it replicate, and in replicating shall
it document, and in documentation shall it bring freedom, serenity and
most cool froodiness to the earth and all who code therein.  --Gospel of Tux