Limits of Licenses

[David Johnson]

On Mon, 27 Mar 2000, John Cowan wrote:
> David Johnson wrote:
> 
> > If copyright law does not give you rights A, B and C, then you do not
> > have them unless the copyright holder gives them to you.
> 
> Nope.  It goes like this:

At first glance I thought that was exactly what I said. Then I reread
what I wrote. I can see how it could be misinterpreted.
 
> >  And I don't care what the judges
> > say, tearing off some plastic shrink wrap doesn't count as an agreement.
> 
> Up till now, the judges mostly agreed with you.  UCITA is designed to
> change that.

But no judge has yet agreed with UCITA! I wonder if a judge would rule
against it on just that basis. Just because a law says that black is
white does not make it so. Ditto for a law saying that an absence of
agreement is a contract.

> There is no single overt act that counts as agreeing: agreement is partly judged
> by what ordinary people do in ordinary circumstances.  Sometimes it requires
> a signature, sometimes not.  For example, when you drop you car off at the
> garage for repairs, you have agreed to pay for them; if you don't, the mechanic
> can keep your car until you do (called a "mechanic's lien").

The ordinary people generally read their estimate agreement and the
repair shop generally does not begin repairs until they have a
*signature*. 

> There could be no such license under copyright law, of course, since lending
> out your copy (or selling it) is an ordinary part of the dominion of the owner of
> the book, not the copyright owner.

I've seen several software licenses that say essentially "don't lend
the media to your friend". I'm wondering why the law treats books and
software differently. 

-- 
David Johnson...
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