RE: Contract or License?
Hello Larry, as I recall, you and I have discussed this subject briefly. I think we agree that this is a confusing area of the law. I do not know of any caselaw that says a software license is not a contract. But, I think the issue is slightly more complex than whether a software license is a contract. Indeed, a software license is a contract, but the question is whether a particular transaction should be characterized as a licensing transaction or some other type of transaction. Consider for instance, a different type of literary work. When a consumer purchases a book off the shelf of a bookstore, the transaction is characterized as a sale of a product, not a licensing transaction; this is so notwithstanding the fact that the book is the embodiment of a copy of a literary work subject to the exclusive rights set forth in the Copyright Act. Now, imagine the same book in digital form purchased online. How should the law treat that transaction? It is quite likely that the law will treat the transaction as a licensing transaction if electronic book distributors have the ability to characterize the legal relations between buyer and seller. UCITA, of course, is an attempt to characterize the legal relations for that type of transaction. In this regard, software is like an e-book. Software developers want to characterize the legal relations between the end-user and the distributor or Copyright holder as contractual; hence, a licensing transaction is established by using software licenses as the legal tool to accomplish this task. The controversy arises primarily from the benefits that copyright holders may derive from using contracts instead of simply selling software like hard bound books are sold. Since private parties may control the terms of contract, a software developer could use this advantage to ostensibly wipe out privileges that are authorized for end-users under the Copyright Act. Some people think this is unfair. To thwart the effect of undermining public policy objectives of copyright, some commentators and end-users have challenged the validity of various software licenses (some even challenge the whole practice, but that battle appears to have been lost). In these challenges, courts look at the particular software license to determine - - just like they do for any contract dispute - - whether there was mutual assent, whether there was valid formation, whether the terms say what the Copyright holder says they say etc. There are a number of cases where courts have not enforced the software license because the court disagreed that the legal relations between the end-user and the software developer/distributor was contractual. In the early 1990's, shrink-wrap licenses were notoriously difficult to enforce. Courts did not see the legal relations as contractual. Instead, transactions involving off-the-shelf software were characterized as a sale of a good. Today, the ubiquitous use of software licensing seems to have altered the trend toward the other direction. I suspect open source licensing faces two primary issues: contract formation and the enforcement of terms. As long as the question of consideration is not at issue, I doubt that courts will find it difficult to characterized the legal relations between licensor and licensee as contractual simply because the tool used was a software license. Having said the aforementioned, you will note that I did not touch upon an earlier issue on this list, which was: what is the point of a software license that is nothing more than a grant of a non-exclusive copyright interest? Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden www.cyberspaces.org [EMAIL PROTECTED] -Original Message- From: Lawrence E. Rosen [mailto:[EMAIL PROTECTED]] Sent: Thursday, September 13, 2001 5:34 PM To: [EMAIL PROTECTED] Subject: Contract or License? I've been following the discussion about the RealNetworks' RTSP Proxy License and the question about whether a license can restrict use as opposed to copying, creating derivative works or distributing those copies and derivative works. Copyright law does not restrict use of an authorized copy. To the extent that the author of software relies solely on a copyright notice to inform prospective users of her rights, then owners of authorized copies can use that software without further permission. However, a contract can impose restrictions on use; contract law allows consenting adults to agree to accept conditions on their use of software or any other product. (There are minor exceptions: The courts won't enforce restrictions on use based on race, religion, sex, etc. of the user, since that would violate certain constitutional principles of equal protection.) To the extent that a software license is a contract, restrictions on use are enforceable. OSD provisions prevent OSI's approval of licenses that discriminate against persons or groups or fields of
Re: Contract or License?
Rod Dixon, J.D., LL.M. wrote: Having said the aforementioned, you will note that I did not touch upon an earlier issue on this list, which was: what is the point of a software license that is nothing more than a grant of a non-exclusive copyright interest? The point is that actual software licenses that grant copyright interests do so only conditionally. -- Not to perambulate || John Cowan [EMAIL PROTECTED] the corridors || http://www.reutershealth.com during the hours of repose || http://www.ccil.org/~cowan in the boots of ascension. \\ Sign in Austrian ski-resort hotel -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Open source + commercial
Hi, I'm a bit new to software licenses. I've investigated through all the usual OSI-approved software licenses and I still haven't found what I'm looking for. I thought the QPL would fit, but after reading it carefully, it doesn't seem like. What I'm looking for is a Free Software license, that enables anyone to use/modify/publish the source code, but only for non-commercial products. And if anybody wants to use it in a commercial product, they have to pay someone. Does something like this exist ? Maybe it was the other Qt license which may not be OSI-approved ? thanx in advance -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Open source + commercial
On Fri, Sep 14, 2001 at 02:12:04PM +0200, Steve Lhomme wrote: What I'm looking for is a Free Software license, that enables anyone to use/modify/publish the source code, but only for non-commercial products. And if anybody wants to use it in a commercial product, they have to pay someone. Does something like this exist ? Maybe it was the other Qt license which may not be OSI-approved ? This license would not be OSI approved, as it would not fit the Open Source definition. Restricting use to non-commercial software violates section 6 of the OSD, restricting use in a field of endeavor. The license you look for does exist, but you won't find it here. -drew -- M. Drew Streib [EMAIL PROTECTED] | http://dtype.org/ FSG [EMAIL PROTECTED]| Linux International [EMAIL PROTECTED] freedb [EMAIL PROTECTED]| SourceForge [EMAIL PROTECTED] PGP signature
Re: Contract or License?
Lawrence E. Rosen wrote: Copyright law does not prohibit use. It prohibits reverse engineering (and similar activities) under certain circumstances. I didn't intend to be subtle about the meaning of the word use. but reverse engineering was part of 'fair use' before DMCA, wasn't it? Greg London -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: RealNetworks' RTSP Proxy License
At 05:20 PM 9/7/01 +0100, Daniel MD wrote: AI too have reviewed this license and i think it needs allot of modification, some bits are really confusing. But i have failed to see any answers from the Author. Sorry for going radio silent on this. We're in the process of reviewing the comments and deciding how to go forward. In general, the intent was a BSD-like license. Judging from the large number of comments, we might not have succeeded in that, so I need to go back to the drawing board with our legal department. Thanks everyone for the careful review. Rob -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: RealNetworks' RTSP Proxy License
At 11:11 14-09-2001 -0700, you wrote: At 05:20 PM 9/7/01 +0100, Daniel MD wrote: AI too have reviewed this license and i think it needs allot of modification, some bits are really confusing. But i have failed to see any answers from the Author. Sorry for going radio silent on this. We're in the process of reviewing the comments and deciding how to go forward. No problem you are probably concentrating on development, that is much more useful than licensing :-) In general, the intent was a BSD-like license. Judging from the large number of comments, we might not have succeeded in that, so I need to go back to the drawing board with our legal department. Thanks everyone for the careful review. Rob Thank You for your time, Best Regards, and Have a Nice Day... Daniel MD [[EMAIL PROTECTED]] of IM-Thinking Consulting. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Open source + commercial
I would not advise confusing commerce and commercial. The Commerce Clause refers to an entirely different matter than what Steve asked. Sure, defining non-commercial is not easy, but it's done all the time because laws require the distinction to be made. For example, a trademark anti-dilution claim must show a use in commerce that is also a commercial use. What that means is the Trademark holder shows that someone is diluting their mark in interstate commerce and that the dilution arises from a commercial use. A parody of a famous trademark on a popular website might be deemed in commerce, but it's likely (although not definitely) to be deemed non-commerical use since a parody is often considered a use for comic effect. The point is every plaintiff claiming anti-dilution must show those elements of the claim. It's difficult, but not impossible. I do agree with Daniel in one respect: I am unsure whether it's useful to draw the commercial/non-commercial distinction in the context of a software license, where enforcement is going to be formidable. If the goal is to lock-out commercial competitors, why not try a M$ license? (Just kidding). It's not clear why you want to make the distinction you asked about so it's difficult to suggest a license. Rod On Fri, 14 Sep 2001, Ravicher, Daniel B. wrote: Not to be sarcastic, but good luck trying to delineate commercial from non. The person who can do that is smarter than all 9 Supreme Court Justices (and all the ones before them). Just look at the commercial speech 1st Amendment doctrine or the commerce clause line of regulation. For instance, did you know that a farmer in Iowa who makes hay to feed his own animals (not to sell to anyone) is considered to be acting in interstate commerce? My point: trying to separate commercial from non-commercial use is a waste of time (notice corporate law delineates profit from non-profit, not commercial from non-commercial, and maybe this is a way for you to think about). Further, no matter what resolution you come to, someone else can come to a reasonable conclusion which is diametrically different. Hence, litigation. I wish you the best of luck in whatever you decide. Take care, --Dan Dan Ravicher Brobeck, Phleger Harrison, LLP 1633 Broadway, 47th Fl. NY, NY 10019 p. 212.315.8032 f. 212.586.7878 mailto:[EMAIL PROTECTED] http://www.brobeck.com/ -Original Message- From: Steve Lhomme [mailto:[EMAIL PROTECTED]] Sent: Friday, September 14, 2001 8:12 AM To: [EMAIL PROTECTED] Subject: Open source + commercial Hi, I'm a bit new to software licenses. I've investigated through all the usual OSI-approved software licenses and I still haven't found what I'm looking for. I thought the QPL would fit, but after reading it carefully, it doesn't seem like. What I'm looking for is a Free Software license, that enables anyone to use/modify/publish the source code, but only for non-commercial products. And if anybody wants to use it in a commercial product, they have to pay someone. Does something like this exist ? Maybe it was the other Qt license which may not be OSI-approved ? thanx in advance -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 === This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, send an email to [EMAIL PROTECTED] BROBECK PHLEGER HARRISON LLP http://www.brobeck.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Open source + commercial
For an example of a license that distinguishes commercial use, see the Aladdin Free Public License: http://www.ghostscript.com/doc/cvs/Public.htm It is not an OSI- or FSF-approved license, but it was written by Peter Deutsch, who is an advocate of the open source and free software movements (he used to be a member of the OSI board of directors). /Larry Rosen -Original Message- From: Rod Dixon [mailto:[EMAIL PROTECTED]] Sent: Friday, September 14, 2001 2:44 PM To: Ravicher, Daniel B. Cc: 'Steve Lhomme'; [EMAIL PROTECTED] Subject: RE: Open source + commercial I would not advise confusing commerce and commercial. The Commerce Clause refers to an entirely different matter than what Steve asked. Sure, defining non-commercial is not easy, but it's done all the time because laws require the distinction to be made. For example, a trademark anti-dilution claim must show a use in commerce that is also a commercial use. What that means is the Trademark holder shows that someone is diluting their mark in interstate commerce and that the dilution arises from a commercial use. A parody of a famous trademark on a popular website might be deemed in commerce, but it's likely (although not definitely) to be deemed non-commerical use since a parody is often considered a use for comic effect. The point is every plaintiff claiming anti-dilution must show those elements of the claim. It's difficult, but not impossible. I do agree with Daniel in one respect: I am unsure whether it's useful to draw the commercial/non-commercial distinction in the context of a software license, where enforcement is going to be formidable. If the goal is to lock-out commercial competitors, why not try a M$ license? (Just kidding). It's not clear why you want to make the distinction you asked about so it's difficult to suggest a license. Rod On Fri, 14 Sep 2001, Ravicher, Daniel B. wrote: Not to be sarcastic, but good luck trying to delineate commercial from non. The person who can do that is smarter than all 9 Supreme Court Justices (and all the ones before them). Just look at the commercial speech 1st Amendment doctrine or the commerce clause line of regulation. For instance, did you know that a farmer in Iowa who makes hay to feed his own animals (not to sell to anyone) is considered to be acting in interstate commerce? My point: trying to separate commercial from non-commercial use is a waste of time (notice corporate law delineates profit from non-profit, not commercial from non-commercial, and maybe this is a way for you to think about). Further, no matter what resolution you come to, someone else can come to a reasonable conclusion which is diametrically different. Hence, litigation. I wish you the best of luck in whatever you decide. Take care, --Dan Dan Ravicher Brobeck, Phleger Harrison, LLP 1633 Broadway, 47th Fl. NY, NY 10019 p. 212.315.8032 f. 212.586.7878 mailto:[EMAIL PROTECTED] http://www.brobeck.com/ -Original Message- From: Steve Lhomme [mailto:[EMAIL PROTECTED]] Sent: Friday, September 14, 2001 8:12 AM To: [EMAIL PROTECTED] Subject: Open source + commercial Hi, I'm a bit new to software licenses. I've investigated through all the usual OSI-approved software licenses and I still haven't found what I'm looking for. I thought the QPL would fit, but after reading it carefully, it doesn't seem like. What I'm looking for is a Free Software license, that enables anyone to use/modify/publish the source code, but only for non-commercial products. And if anybody wants to use it in a commercial product, they have to pay someone. Does something like this exist ? Maybe it was the other Qt license which may not be OSI-approved ? thanx in advance -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 === This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, send an email to [EMAIL PROTECTED] BROBECK PHLEGER HARRISON LLP http://www.brobeck.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Contract or License? (DMCA)
At 08:31 PM 09/14/2001 -0400, Rod Dixon, J.D., LL.M. wrote: Hmm... You were on much better footing before when you appeared to stay close to traditional copyright. Your statements below about 1201 of the DMCA are not accurate. I doubt that the word content control appears anywhere in 1201; that section focuses on access controls and the circumvention of access controls, which have nothing to do with section 106 rights. As it's been interpreted by Judge Kaplan at least, 1201 does act as the use control Karsten describes. If authorized access devices (licensed DVD players) permit only certain limited uses (play on a straight television or Windows machine, without skipping commercial previews) and it's a circumvention violation to make or use an alternate means of access, then 1201 effectively prohibits alternate uses of copyrighted content. Even if those uses would be fair or not even covered by copyright pre-DMCA. I'd agree 1201 is not copyright per se, but if it's justified under the commerce power instead, that's scant help to the people who want to make alternate uses -- the statute is still a use control masquerading as part of Title 17 (Copyright). If your point is that blocking access to a work effectively means all uses of the work are subsumed under copyright, I cannot agree with that point. As you will recall, copyright law must be anchored by its constitutional basis set forth at Art. I sec. 8, cl. 8. Unfortunately, we've seen that the DMCA's drafters didn't feel constrained by that purpose, nor the D.C. Circuit in considering the challenge to copyright term extension. I hope that these persistent use controls are stopped in their tracks, but they have plenty of proponents in Congress and the courts. --Wendy -- Wendy Seltzer -- [EMAIL PROTECTED] Fellow, Berkman Center for Internet Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Contract or License?
If I recall correctly, we have discussed this issue before on this list. It seems to me that Karsten and Larry are saying the same thing, but doing so using different language. The Copyright Act grants copyright holders exclusive rights over: reproduction, public display, distribution, derivative works, public performance (and more recently, digital transmission of sound recordings). None of those rights explicitly refer to use. Indeed, copyright holders cannot control all uses of their works because of various copyright doctrine that preclude such control such as, scenes-a-faire, idea/expression dichotomy, and fair use. Despite this fact, however, copyright law and software is not an easy fit, and the Mai v. Peak case is still good law. Today, a copyright holder may control the RAM copy of a software copyright-protected work. The fact that a copyright holder can control his or her work at the level of a RAM copy may be big trouble for us. Ostensibly, one can hardly use' software without the author's permission, if he or she can control copying at the point of a RAM copy. This practicial consideration, I believe, is Karsten's point. Indeed, section 117 of the Copyright Act is a limitation - - a limitation that is quite limited - - on this RAM right (no pun intended). Rod On Fri, 14 Sep 2001, Karsten M. Self wrote: on Fri, Sep 14, 2001 at 09:31:10AM -0700, Lawrence E. Rosen ([EMAIL PROTECTED]) wrote: Karsten, Copyright law does not restrict use of an authorized copy. It does now. Under 1201, there are various uses of a copy which are prohibited. If a content control mechanism prohibits certain types of use, then circumventing the control (arguably a use) is prohibited, under Title 17. Copyright law does not prohibit use. It prohibits reverse engineering (and similar activities) under certain circumstances. I didn't intend to be subtle about the meaning of the word use. I hate to be the one to out-lawyer the lawyers OK, no I don't. ;-) But I did want to point out that the expression v. usage boundary has now been blurred. Peace. -- Karsten M. Self [EMAIL PROTECTED] http://kmself.home.netcom.com/ Praying for the victims. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Contract or License?
Hmm... You were on much better footing before when you appeared to stay close to traditional copyright. Your statements below about 1201 of the DMCA are not accurate. I doubt that the word content control appears anywhere in 1201; that section focuses on access controls and the circumvention of access controls, which have nothing to do with section 106 rights. If your point is that blocking access to a work effectively means all uses of the work are subsumed under copyright, I cannot agree with that point. As you will recall, copyright law must be anchored by its constitutional basis set forth at Art. I sec. 8, cl. 8. I suspect what the DMCA has to do with that the Supreme Court will inevitably have to tell us. Consequently, your conclusion based upon section 1201 of the DMCA is premature. We will have to see how much of the DMCA survives challenge. Rod -Original Message- From: Karsten M. Self [mailto:[EMAIL PROTECTED]] Sent: Friday, September 14, 2001 7:39 PM To: [EMAIL PROTECTED] Subject: Re: Contract or License? on Fri, Sep 14, 2001 at 06:20:19PM -0400, Rod Dixon ([EMAIL PROTECTED]) wrote: On Fri, 14 Sep 2001, Karsten M. Self wrote: on Fri, Sep 14, 2001 at 09:31:10AM -0700, Lawrence E. Rosen ([EMAIL PROTECTED]) wrote: Karsten, Copyright law does not restrict use of an authorized copy. It does now. Under 1201, there are various uses of a copy which are prohibited. If a content control mechanism prohibits certain types of use, then circumventing the control (arguably a use) is prohibited, under Title 17. Copyright law does not prohibit use. It prohibits reverse engineering (and similar activities) under certain circumstances. I didn't intend to be subtle about the meaning of the word use. I hate to be the one to out-lawyer the lawyers OK, no I don't. ;-) But I did want to point out that the expression v. usage boundary has now been blurred. If I recall correctly, we have discussed this issue before on this list. It seems to me that Karsten and Larry are saying the same thing, but doing so using different language. The Copyright Act grants copyright holders exclusive rights over: reproduction, public display, distribution, derivative works, public performance (and more recently, digital transmission of sound recordings). None of those rights explicitly refer to use. Indeed, copyright holders cannot control all uses of their works because of various copyright doctrine that preclude such control such as, scenes-a-faire, idea/expression dichotomy, and fair use. Despite this fact, however, copyright law and software is not an easy fit, and the Mai v. Peak case is still good law. Today, a copyright holder may control the RAM copy of a software copyright-protected work. The fact that a copyright holder can control his or her work at the level of a RAM copy may be big trouble for us. Ostensibly, one can hardly use' software without the author's permission, if he or she can control copying at the point of a RAM copy. This practicial consideration, I believe, is Karsten's point. Indeed, section 117 of the Copyright Act is a limitation - - a limitation that is quite limited - - on this RAM right (no pun intended). Not quite. There are specific usage restrictions imposed by the DMCA that aren't strictly limited to RAM images. From my earlier comments to the free-sklyarov list (which focusses more strongly on DMCA issues): on Thu, Sep 13, 2001 at 09:20:29AM -0400, Roger Sperberg ([EMAIL PROTECTED]) wrote: Long before there was the capability for computers to read a text aloud to you, the audio rights for books were separated out as a revenue source for publishers. Audio rights as expressed by phonocopies. Not audio rights as expressed by a different interpretation path of the same fundamental underlying copy of data. Any attempt to use copyright law to constrain use of a copy of a work -- use in such a form that does not produce a fixed copy in tangible medium, and text-to-speach is such non-fixed expression of a work -- is creating a fundamentally new interpretation of copyright law. Section 1201 has already done this, but barring 1201, I cannot see text-to-speech as an exclusive right. Copyright specifically addresses various works covered by copyright (sections 102 and 103): http://www4.law.cornell.edu/uscode/17/102.html (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying
