[License-discuss] Reverse Engineering and Open Source Licenses

[Lawrence Rosen]

[side issue below]

John Cowan wrote:
> In licensed software, however, there *is* privity of contract.

I'm not sure that's true for "sublicensed" software. That's why I objected
to the sublicensing provision in a recently-approved license.

Most licenses nowadays fortunately are directly from the licensor to the
licensee. Sublicensing not involved.

/Larry


-----Original Message-----
From: cowan at ccil.org [mailto:cowan at ccil.org] 
Sent: Wednesday, March 11, 2015 10:58 AM
To: license-discuss at opensource.org
Subject: Re: [License-discuss] Reverse Engineering and Open Source Licenses

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


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