a proposed change to the OSD
Rod Dixon, J.D., LL.M.
rod at cyberspaces.org
Sat Oct 26 21:06:30 UTC 2002
Your are not likely to find a legal meaning (in the copyright law sense) of
"use" restrictions, but it might be helpful to frame the issue in a two-step
analysis:  Use restrictions that involve exclusive copyright interests,
and  use restrictions that exceed or are outside of the scope of
exclusive copyright interests. The proposal concerns step 2. (An example of
step 1 might be a restriction on public distribution of copies). I think the
language in the proposal would benefit from refinement; notably, although
step 2 restrictions could encompass a wide-range of matters, I doubt I would
ever have included indicia of mutual assent (i.e., clickwrap matters). I
think the aerlier suggestion that an explanatory note follow the proposed
clause is a good idea.
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at cyberspaces.org
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132
> From: "Dr. David Alan Gilbert" <gilbertd at treblig.org>
> > Can you explain to me (and the list) what the definition of a
> > 'use restriction' is?
> IANAL, of course.
> For software, "use" is execution of the software.
> Copyright law doesn't speak much of software at all, so we can't rely
> on that for a definition and must look at court cases for precedents.
> Creation of derived works is a separate right from use under
> copyright law. It can be restricted separately from use, and vice
> versa. The act of modifying software creates a derived work
> that is partially your copyright, and partially that of the original
> Public performance is a separate right as well, but in the U.S. it is
> defined to apply to plays and audiovisual media, and _not_ to software.
> There is some contention regarding whether linking creates a derived
> work, and exactly one court case on the topic that isn't definitive.
> Dynamic linking, server-izing, and cross-process procedure call schemes
> like CORBA make this more complicated. With CORBA, you can "use" a
> library without ever linking to it, and it would be difficult to proves
> in court that a derived work would be created. In many of these schemes,
> the derived work, if one exists, is created on the user's system at
> run-time and it's going to be difficult to prove in court that it's
> _distributed_ as a derived work. All of this makes it questionable that
> the GPL's linking provisions with regard to source-code disclosure would
> be enforced in court.
> In an effort to create a more clearly enforcible GPL-like license, Larry
> has relied on _use_ restriction rather than restriction of the creation of
> derived works in his new license.
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
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