[License-review] "Innocent" infringers and third-party beneficiaries

[Lawrence Rosen]

Larry Rosen asked this:
> > Are you suggesting that there can be oblivious third party 
> > beneficiaries (under contract law!) of a software license who get 
> > their rights from infringers (under copyright law!)?

John Cowan responded:
> No, of course not.  But the fact that Frank gets a copy of Dave's FOSS
> work from infringer Emily doesn't mean that Frank is an infringer too;
> he has a perfectly good license (to which he may of course be
> oblivious) from Dave.
> A license to violate a proprietary right is good whether you know 
> about it or not.

Could I please get some feedback on this point from other *copyright*
(rather than real property) lawyers?

Thanks!

/Larry


-----Original Message-----
From: John Cowan [mailto:cowan at mercury.ccil.org] 
Sent: Thursday, September 18, 2014 8:00 AM
To: lrosen at rosenlaw.com; License submissions for OSI review
Subject: Re: [License-review] Request for Approval of Universal Permissive
License (UPL)

Lawrence Rosen scripsit:

> In point of fact, though, that is a danger, so I recommend that all 
> FOSS software distributors post links to the source code and licenses 
> for EVERY FOSS component regardless of its license in order to avoid 
> any possibility of that sin.

And so say we all.

> And if they ship CD's to Debian Island, I encourage sending along the 
> source code. Not that anyone actually wants it that way, and Debian 
> Island now supports Internet access.

Actually, there are still about 8 million people living in countries that,
as a whole, have no access to the Internet (other than Iridium, which is
2400 baud or so -- try downloading modern software at 240 bytes/sec!) and a
whole lot more places, including many in the U.S. itself, that have neither
wired nor terrestrial wireless service.

> Let Richard answer for himself. :-)

He has, many times.

>  And, to grotesquely exaggerate
> the situation, "custom of the trade" was never an excuse for slavery 
> nor copyright infringement. You should read more cases decided on the 
> basis of custom of the trade before you rely on it in a software 
> copyright law setting. So should I.

You're probably right.  And hope we never come up before Judge
Dredd^H^H^H^H^HScalia, Implacable Defender of the Verbatim.

> Are you suggesting that there can be oblivious third party 
> beneficiaries (under contract law!) of a software license who get 
> their rights from infringers (under copyright law!)?

No, of course not.  But the fact that Frank gets a copy of Dave's FOSS work
from infringer Emily doesn't mean that Frank is an infringer too; he has a
perfectly good license (to which he may of course be oblivious) from Dave.
A license to violate a proprietary right is good whether you know about it
or not.  I can grant a license to all lawyers with offices in Ukiah to enter
on my land in upstate New York, and that license is fully paid up not only
by you, who know about it, but by your neighbors, who probably don't.

-- 
John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
"After all, would you consider a man without honor wealthy, even if his
Dinar laid end to end would reach from here to the Temple of Toplat?"
"No, I wouldn't", the beggar replied.  "Why is that?" the Master asked.
"A Dinar doesn't go very far these days, Master.        --Kehlog Albran
Besides, the Temple of Toplat is across the street."      The Profit