[License-discuss] Reverse Engineering and Open Source Licenses

[Pamela Chestek]

On 3/11/2015 1:58 PM, cowan at ccil.org wrote:
> 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.
Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng:

A law that permits a copyright holder to control the resale or other
disposition of a chattel once sold is similarly “against Trade and
Traffi[c], and bargaining and contracting.” ... The “first sale”
doctrine also frees courts from the administrative burden of trying to
enforce restrictions upon difficult-to-trace, readily movable goods. And
it avoids the selective enforcement inherent in any such effort. Thus,
it is not surprising that for at least a century the “first sale”
doctrine has played an important role in American copyright law. See
Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed.
1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat.
1084.... The common-law doctrine makes no geographical distinctions; nor
can we find any in Bobbs-Merrill (where this Court first applied the
“first sale” doctrine) or in §109(a)s predecessor provision, which
Congress enacted a year later. See supra, [1364]  at ___, 185 L. Ed. 2d,
at 405.

Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013)
>  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.
Do you have an example where paying for a tangible article has been
construed by a court as contractual acceptance of a restrictive term
printed on it?

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
Board Certified by the NC State Bar's
Board of Legal Specialization in Trademark Law