In comp.os.linux.advocacy Alexander Terekhov <terek...@web.de> wrote: > 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. Q. What would happen if doctors and lawyers worked for minimum wage? A. Doctors would still get laid. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss