Nice paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586580&download=yes (Why License Agreements Do Not Control Copy Ownership: First Sales and Essential Copies)
I especially like this part: "When "license" is used as a noun in the copyright context, it means something like, "a grant by the holder of a copyright to another of any of the rights embodied in the copyright short of an assignment of all rights" as in "The agreement contained a license to reproduce 20 copies of the photograph." When "license" is used as a verb it typically means "to give permission or consent" as in "The author licensed her publication right to the nation's largest distributor." These uses of the word relate only to the intangible copyright. The word "license" is also, unfortunately, used in conjunction with tangible things. First, as a noun it is often used synonymously with the terms "agreement" or "contract" when that underlying agreement contains grants of copyright permissions, as in "Did she sign the license?" This usage seems to lead to confusion less often and I will not address it further here. However, particularly in the software context, the word "license" is used as a verb in yet another way that I wish to focus on. Software distributors often say, "We only license our software. We do not sell it." This is a difficult sentence to parse because of the layers of ambiguity involved, but particularly from reading the cases, one comes to understand that the intended definition is not just that described above of "to give permission or consent" with respect to some right of copyright, but instead is used in a way that means something more like: to transfer to another possession of a tangible object in which a copyrighted work is embodied, for a specified period of time or perpetually, without transferring title to the tangible object, and typically providing at least some copyright permission. It would be useful to have a different term to indicate this unique use of "license." Something like "no title to the copy license" would perhaps convey the intended meaning, but would be exceedingly cumbersome. For purposes of clarity in this section, when I talk about this sense of "license" I will place the word in italics, like so: /license/.140 Usage of the word /license/ has caused rampant confusion. Before considering some examples of this confusion, it is worthwhile to provide some historical context on the development of this usage of the term /license/. The Third Circuit explained, in an opinion from 1991, that: When these form licenses were first developed for software, it was, in large part, to avoid the federal copyright law first sale doctrine... [Court describes software rental companies.] The first sale doctrine, though, stood as a substantial barrier to successful suit against these software rental companies, even under a theory of contributory infringement. By characterizing the original transaction between the software producer and the software rental company as a license, rather than a sale, and by making the license personal and non-transferable, software producers hoped to avoid the reach of the first sale doctrine and to establish a basis in state contract law for suing the software rental companies directly. Questions remained, however, as to whether the use of state contract law to avoid the first sale doctrine would be preempted either by the federal copyright statute (statutory preemption) or by the exclusive constitutional grant of authority over copyright issues to the federal government (constitutional preemption). (citations). Congress recognized the problem, and, in 1990, amended the first sale doctrine as it applies to computer programs and phonorecords... This amendment renders the need to characterize the original transaction as a license largely anachronistic.141 But the usage, even if anachronistic, has persisted, in part because software distributors wanted more than to defeat the first sale doctrine in the case of software rental companies. Even after Congress responded to that concern, software distributors were unwilling to give up the /licensing/ fiction because it appeared to provide a means to other desirable ends such as price discrimination, controlling ancillary markets, and preventing competition in related goods.142 The merits of permitting copyright owners these additional benefits are not my focus. I am concerned with how the ambiguous use of the word "license" has created a land mine for courts who end up speaking imprecisely or in the worst case scenarios, reaching erroneous conclusions. The Microsoft Corp. v. Software Wholesale Club, Inc. opinion provides one example. The court wrote, "However, a party that licenses its products rather than selling them may avoid the application of the first-sale doctrine. See, e.g., Harmony Computers & Elecs., (the fact that Microsoft licenses rather than sells its products likely precludes application of the first-sale doctrine); Novell, Inc., 2000 U.S. Dist. LEXIS 9975, at *7-18 (the first-sale defense applied, but only because Novell sold, rather than licensed, its software product)."143 What does the phrase "licenses its products" mean here? Both "license" and "products" could have two meanings.144 If it just means that a license, as in a grant of permission, is provided with respect to some right of copyright, then it has fallen into the error of ignoring 17 U.S.C. ยง 202, by failing to recognize the possibility of ownership of a copy independent from ownership of the copyright, to be discussed more fully next. But, if it instead means /license/, that is, a transfer of possession without a transfer of title to the copy, then one has presumed the answer to the question being asked, that is, in trying to determine whether someone is an owner of a copy, it is not much use to say that those who are not owners of a copy do not have the rights of owners of a copy. We knew this at the outset. What was wanted was a feature of the transaction that would distinguish the owners from the non-owners, other than the label applied by the copyright holder.145" regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss