[License-discuss] Reverse Engineering and Open Source Licenses

[Lawrence Rosen]

Pamela Chestek asked:
> 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?


"DANGER: Poison inside!"

Otherwise, thanks to Pamela for her legal research on the first sale
doctrine as applied to copyrighted articles!

Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."


-----Original Message-----
From: Pamela Chestek [mailto:pamela at chesteklegal.com] 
Sent: Wednesday, March 11, 2015 2:34 PM
To: license-discuss at opensource.org
Subject: Re: [License-discuss] Reverse Engineering and Open Source Licenses

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
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