dtemeles at nvalaw.com
dtemeles at nvalaw.com
Thu Sep 23 03:54:25 UTC 2010
John - good feedback. It appears I need to clarify a couple of points
Quoting John Cowan <cowan at mercury.ccil.org>:
> I don't think Jacobsen has anything to do with the point at hand, since
> it was (as you note) highly specific.
The holding and analysis in Jacobsen is relevant to the point at hand,
which is that a license is a contract, whether it is proprietary or
>> [W]e have a complete lack of certainty on what will happen with a
>> given license and a given use in a given court.
> We certainly do, which is why statements like "there is no such thing as
> a bare license" are overreaching. It may not be prudent to advise your
> client to rely on an unsubstantiated legal theory, but it is certainly
> not prudent to advise your client that such theories are worthless and
> they can disregard public licenses with impunity.
I'm not in any way suggesting that anyone can disregard public
licenses with impunity or otherwise. A public license is a contract
just like any proprietary license. Moglen and FSF seem to argue that
public licenses are a different animal altogether - a "bare license" -
something that exists outside of contract law. I'm arguing that they
are subject to the same rules as proprietary licenses.
>> 3. The open source community would be well served if we focus more
>> attention on developing sound enforcement provisions and mechanisms
>> so that the licensors can seek and obtain relevant redress against
>> infringers regardless of whether the court du jour determines that the
>> use is a breach of the license (breach of contract), or a use outside
>> the scope of the license (copyright infringement).
> This seems to me to be an attempt to solve a non-problem. Open and
> contumacious infringers in the style of people who sell bootleg
> proprietary software seem to be extraordinarily rare. As far as anyone
> knows, most infringers are either inadvertently so (and are willing to
> comply when informed of their obligations) or people who believe that
> specific technical circumstances excuse them from those obligations.
You mean like Katzer? Sure, there probably aren't many bootleg
sellers of unmodified open source software, but there likely are
numerous applications that incorporate open source software in a
manner that violates the terms of the applicable license (i.e.,
derivative works of open source apps). Consider, for example, the
multitude of cases (breach of contract and infringement) filed each
year with respect to derivative works of proprietary software.
>> If one rejects the unilateral license agreement applicable to
>> open source software that the individual downloads, then clearly
>> the individual has no license to use the software and any use that
>> violates the author's exclusive rights under 17 USC 106 would constitute
>> infringement (unless excused elsewhere in the code or unless sufficient
>> facts exist to create an implied license).
> Assuming that by "use" you mean "execute", and not "reuse in a collective
> or derivative work", I don't see any reason to believe that. If I
> obtain a copy of a work from the author, I can use the work as I please,
> provided I don't presume on any of the specific rights in the copyright
> bundle, just as if I had obtained a pickle from a pickle manufacturer
> (within the general bounds of legal behavior, etc.)
You are absolutely correct. I was sloppy in my use of the word "use".
What I mean to say is copy, distribute, make derivative works of...
IAAL, but not your lawyer and this is not legal advice.
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