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: [1] Use restrictions that involve exclusive copyright interests,
and [2] 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.

Rod Dixon
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
> contributor.
> 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.
> Thanks
> Bruce
> --
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