bare license

Fri Jan 16 01:31:57 UTC 2004

I do not think the reason why FSF favors the argument you mentioned --  that
an open source license is a license, not a contract --  is a secret. A
copyright license typically sets forth the rights granted by the licensor.
The issue that occasionally arises is whether a copyright license like the
GNU GPL must meet the rules and  formalities typically associated with
contracts (e.g., mutual assent).

Rod

Rod Dixon
Open Source Software Law
Blog: http://opensource.cyberspaces.org

----- Original Message ----- 
From: "dlw" <danw6144 at insightbb.com>
To: <license-discuss at opensource.org>
Sent: Thursday, January 15, 2004 9:02 AM
Subject: bare license

: I think I understand why the Free Software Foundation insists that
: a license is not a contract. Their belief is grounded upon
: a mistaken interpretation of the case law on licensing patents,
: highlighted in a 1938 decision by the Supreme Court in
: General Talking Pictures Corp. v. Western Electric Co.,
: Inc., 305 U.S. 124
:
:
: "The question of law requiring decision is whether the restriction
: in the license is to be given effect. That a restrictive license
: is legal seems clear. Mitchell v. Hawley, 16 Wall. 544. As was said
: in United States v. General Electric Co., 272 U.S. 476, 489 , 47
: S.Ct. 192, 196, the patentee may grant a license 'upon any
: condition the performance of which is reasonably within the reward
: which the patentee by the grant of the patent is entitled to secure.'
: The restriction here imposed is of that character. The practice of
: granting licenses for a restricted use is an old one, see Providence
: Rubber Company v. Goodyear, 9 Wall. 788, 799, 800; Gamewall Fire-Alarm
: Telegraph Co. v. Brooklyn, C.C., 14 F. 255. So far as appears, its
: legality has never been questioned. The parties stipulated that 'it
: is common practice where a patented invention is applicable to
: different uses, to grant written licenses to manufacture under
: United States Letters Patents restricted to one or more of the
: several fields of use permitting the exclusive or non-exclusive use
: of the invention by the licensee in one field and excluding in
: another field."
:
:
: The phrase above, "the patentee may grant a license 'upon any
: condition the performance of which is reasonably within the reward
: which the patentee by the grant of the patent is entitled to
: secure.' refers to the fact that any condition imposed in a "bare"
: license (no contractual terms) may restrict only the use of the
: exclusive rights ("reward") of the patentee. The patentee
: alone is the only person who can restrict his exclusive rights.
:
: The phrase quoted above does not apply analogously to all
: "exclusive rights" in derivative copyrighted works. In patent law
: there is no such thing as a "derivative patent" defined as two
: distinct legal parties owning independent exclusive rights in
: the same idea.
:
: Sec. 103 (b) The copyright in a compilation or derivative work extends
: only to the material contributed by the author of such work...
: The copyright in such work is independent of, and does not affect or
: enlarge the scope, duration, ownership, or subsistence of, any
: copyright protection in the preexisting material.
:
: An original author has an exclusive right to commission a derivative
: work, but his exclusive rights encompass only his preexisting work
: in the commissioned work. The original author must "bargain" for the
: modifying author's exclusive rights. They exist independently of the
: original author's exclusive rights and hence do not fall under the
: scope of a "bare" license. They are not "within the reward which the
: copyright holder by the grant of the copyright is entitled to secure"
: of the original author.
:
: A summary of the above reasoning is "a unilateral grant of permission
: for a derivate copyright work does not exist within the scope of the
: definition of a 'bare' license."
:
: --
: license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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