Aggressive IP dogma spreads to books
Jeffrey B. Siegal
books. The authors apparently feel they are entitled to make money any possible use
of their work. They're forgetting that copyright is a "limited monopoly" granted as
an incentive to create works and instead are viewing it as an entitlement.
In that piece, tytso writes, in part:
--->
And thus we see the danger of the positions espoused by the Software Publisher's
Association, and UCITA. Not only do they wish to take away our rights ... but their
actions have emboldened folks such as the Authors Guild ... to try to take away
rights which we always have had .... After all, if the software vendors can restrict
what you can do their software, why shouldn't a book publisher be able to restrict
what you can do with their books?
<---
http://slashdot.org/article.pl?sid=00/12/28/1717237&mode=thread
Joseph Pietro Riolo
On Fri, 29 Dec 2000, Jeffrey B. Siegal wrote:
> Slashdot is running a piece about the Author's Guild asking Amazon not to sell used
> books. The authors apparently feel they are entitled to make money any possible use
> of their work. They're forgetting that copyright is a "limited monopoly" granted as
> an incentive to create works and instead are viewing it as an entitlement.
That stinks! I don't think that the authors ever realize that the
more restrictions they impose on the lay people, the less support
they will get from them which in turn means that they get less
money creating a vicious cycle as the result.
I see that the authors are taken over by their love for money
and control (instead of love for writing) and someone said that
the love of money is the root of all evil. What's new!?
Joseph Pietro Riolo
<ri...@voicenet.com>
James White
> I see that the authors are taken over by their love for money
> and control (instead of love for writing) and someone said that
> the love of money is the root of all evil. What's new!?
Please don't lump ALL authors together. The Authors Guild can do whatever
it's members want but I, as an author, am very happy to see my book as
widely read as possible even when that means being held by libraries and
sold used.
--
James E. White
Inventor, Marketer, and Author of "Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)" www.willitsell.com
DRoe2
> Slashdot is running a piece about the Author's Guild asking Amazon not to sell used
> books. The authors apparently feel they are entitled to make money any possible use
> of their work. They're forgetting that copyright is a "limited monopoly" granted as
> an incentive to create works and instead are viewing it as an entitlement.
Gee, that reminds me of the very rich fat-assed C&W singer, Garth
Brooks, lobbying Congress about banning resales of CD's, albums and
tapes. And his threat to not allow his material (and that of his followers and
supporters) in record stores who deal in the secondary market.
Guess he isn't rich enough. And I wonder how many songwriters
he screwed over in his career?
phil hunt
>Slashdot is running a piece about the Author's Guild asking Amazon not to sell used
>books. The authors apparently feel they are entitled to make money any possible use
>of their work. They're forgetting that copyright is a "limited monopoly" granted as
>an incentive to create works and instead are viewing it as an entitlement.
I suppse the Authors' Guild will be going after libraries next...
--
*****[ Phil Hunt ***** ph...@comuno.freeserve.co.uk ]*****
"An unforseen issue has arisen with your computer. Don't worry your
silly little head about what has gone wrong; here's a pretty animation
of a paperclip to look at instead." -- Windows2007 error message
Tim Smith
>to sell used books. The authors apparently feel they are entitled to
>make money any possible use of their work. They're forgetting that
>copyright is a "limited monopoly" granted as an incentive to create
>works and instead are viewing it as an entitlement.
They are not forgetting anything, since their position has nothing to do
with copyright. Perhaps you should actually read the letter that was
linked to at slashdot, before going into rant mode.
>In that piece, tytso writes, in part:
>
>---> And thus we see the danger of the positions espoused by the
>Software Publisher's Association, and UCITA. Not only do they wish to
>take away our rights ... but their actions have emboldened folks such
>as the Authors Guild ... to try to take away rights which we always
>have had .... After all, if the software vendors can restrict what you
>can do their software, why shouldn't a book publisher be able to
>restrict what you can do with their books? <---
Tytso didn't bother to actually read the authors/publishers letter,
either.
--Tim Smith
Tim Smith
>I suppse the Authors' Guild will be going after libraries next...
I didn't realize that libraries sold books.
--Tim Smith
Jeffrey B. Siegal
> They are not forgetting anything, since their position has nothing to do
> with copyright. Perhaps you should actually read the letter that was
> linked to at slashdot, before going into rant mode.
I did read the letter, and I completely disagree with your assertion
that their position has nothing to do with copyright.
Copyright forms the bargain by which authors are compensated in a
limited way for creating works. Their position that encouraging sales
of used books denies them a "fair opportunity to earn royalties for
their book sales whatever the sales outlet" is in direct contradiction
with the provision of copyright law which explicitly permit used book
sales without their permission:
"the owner of a particular copy or phonorecord lawfully made under this
title, or any person authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord." 17 USC 109(a)
Especially given the fact that copyright expiration has been repealed,
permitting activities outside of the control of the copyright holder are
*essential* to giving society, and not just the copyright holder, some
benefit from the bargain, which is the whole point of copyright.
Copyright *must* be a two way street, or it loses its legitimacy
altogether.
> Tytso didn't bother to actually read the authors/publishers letter,
> either.
I strongly suspect you are wrong.
Maybe you didn't read it, or perhaps you didn't understand it.
Graham Murray
No, but they lend books which otherwise the punter would have to
purchase in order to read. Anyway secondhand bookstores are not a new
phenomenon.
Isaac
I'm sure you have a point, but pretending to be obtuse isn't making
that point.
The library comment was an obvious (and perhaps silly) extrapolation
of the Guild's position. I'm sure you understood.
Isaac
Jeffrey B. Siegal
> The library comment was an obvious (and perhaps silly) extrapolation
> of the Guild's position. I'm sure you understood.
It wasn't silly at all.
It was a perfectly logical extension of the dogma, evident in the
Author's Guild's letter, that authors have some kind of (moral if not
legal) "right" to be compensated for any use of their work, and that
exceptions to that dogma, such as used book sales and libraries, are
"unfair" and need to be corrected.
Isaac
Don't forget the incredible ripoff that results when you lend or
give away a book. The horror.
I'll grant it was logical, but I believe that the Guild wouldn't
risk the bad PR that would result from coming out against public
libraries. Perhaps silly was the wrong choice of words.
Isaac
Tim Smith
>> They are not forgetting anything, since their position has nothing to do
>> with copyright. Perhaps you should actually read the letter that was
>> linked to at slashdot, before going into rant mode.
>
>I did read the letter, and I completely disagree with your assertion
>that their position has nothing to do with copyright.
>
>Copyright forms the bargain by which authors are compensated in a
>limited way for creating works. Their position that encouraging sales
>of used books denies them a "fair opportunity to earn royalties for
>their book sales whatever the sales outlet" is in direct contradiction
>with the provision of copyright law which explicitly permit used book
>sales without their permission:
17 USC 109 does not require authors or publishers to support used book
sales. All it does is make it so that used book sales are not
prohibited by copyright. If an author or publisher were to refuse to
deal with stores that sell used books, that would not be a copyright
issue.
--Tim Smith
Tim Smith
Yes, but the essence of what the Authors Guild and the publishers are
objecting to is that Amazon, which people go to in search of new books,
was tying their used book sales in with the new book sales, in such a
way as to make it very likely that a significant number of people who
would have otherwise bought the new book would buy a used book instead.
Libraries are different, for two reasons. First, people generally go to
the library to get something they only have a transitory interest in. I
don't think libraries take that much away from new book sales. Second,
libraries have a limited impact, because when one person borrows a book
from a library, anyone else who needs it right away has to go buy it.
Used bookstores are also different. In the brick-and-mortar stores, new
books and used books have managed to become separate niches, that in
most ways compliment each other rather than compete.
Books make almost all of their money soon after publication, and neither
libraries nor traditional used bookstores affect that much. They both
mostly deal in books that have been out for a while.
An online store that combines new and used sales in an integrated
fashion has potential to gut new sales, especially during that time soon
after publication when the book is selling best.
--Tim Smith
Lee Hollaar
>17 USC 109 does not require authors or publishers to support used book
>sales. All it does is make it so that used book sales are not
>prohibited by copyright. If an author or publisher were to refuse to
>deal with stores that sell used books, that would not be a copyright
>issue.
It might raise antitrust or misuse of copyright problems, however ...
simon
Tim Smith wrote:
> On 30 Dec 2000 17:36:43 +0000, Graham Murray <news...@gmurray.org.uk> wrote:
> >In gnu.misc.discuss, t...@halcyon.com (Tim Smith) writes:
> >> phil hunt <ph...@comuno.freeserve.co.uk> wrote:
> >> >I suppse the Authors' Guild will be going after libraries next...
> >>
> >> I didn't realize that libraries sold books.
> >
> >No, but they lend books which otherwise the punter would have to
> >purchase in order to read. Anyway secondhand bookstores are not a new
> >phenomenon.
>
> Yes, but the essence of what the Authors Guild and the publishers are
> objecting to is that Amazon, which people go to in search of new books,
> was tying their used book sales in with the new book sales, in such a
> way as to make it very likely that a significant number of people who
> would have otherwise bought the new book would buy a used book instead.
>
> Libraries are different, for two reasons. First, people generally go to
> the library to get something they only have a transitory interest in. I
> don't think libraries take that much away from new book sales. Second,
> libraries have a limited impact, because when one person borrows a book
> from a library, anyone else who needs it right away has to go buy it.
>
> Used bookstores are also different. In the brick-and-mortar stores, new
> books and used books have managed to become separate niches, that in
> most ways compliment each other rather than compete.
Except for textbooks, where new and used are often next to each other
on the shelf
Bruce Hayden
Except that it ignores the First Sale doctrine.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden bha...@acm.org
Phoenix, Arizona bha...@ieee.org
bha...@copatlaw.com
Bruce Hayden
> 17 USC 109 does not require authors or publishers to support used book
> sales. All it does is make it so that used book sales are not
> prohibited by copyright. If an author or publisher were to refuse to
> deal with stores that sell used books, that would not be a copyright
> issue.
No - but potentially antitrust tying if those attempting
to keep Amazon from doing such have significant market strength.
Jeffrey Siegal
>
> "Jeffrey B. Siegal" wrote:
> >
> > Isaac wrote:
> > > The library comment was an obvious (and perhaps silly) extrapolation
> > > of the Guild's position. I'm sure you understood.
> >
> > It wasn't silly at all.
> >
> > It was a perfectly logical extension of the dogma, evident in the
> > Author's Guild's letter, that authors have some kind of (moral if not
> > legal) "right" to be compensated for any use of their work, and that
> > exceptions to that dogma, such as used book sales and libraries, are
> > "unfair" and need to be corrected.
>
> Except that it ignores the First Sale doctrine.
Now I'm confused.
Jeffrey Siegal
> 17 USC 109 does not require authors or publishers to support used book
> sales.
The phrase "without the authority of the copyright owner" makes it
pretty clear that the intent is that their support or lack thereof is
irrelevant.
> If an author or publisher were to refuse to
> deal with stores that sell used books, that would not be a copyright
> issue.
If they did, and if existing antitrust or misuse of copyright were not
sufficient to block such an action, legislation to clarify the
boundaries of power available to those who enjoy the benefits granted by
copyright would be in order, and would certainly be supported by the
many book stores (not just Amazon) who sell both new and used books.
The authors and publishers are simply out of line, and they need to be
slapped down (as do the software and media copyright holders who
inspired them).
Jeffrey Siegal
> Yes, but the essence of what the Authors Guild and the publishers are
> objecting to is that Amazon, which people go to in search of new books,
The assumption that people go to Amazon only, or even primarily, in
search of new books is incorrect.
Amazon runs an auction and secondhand business where people look for all
sorts of used goods.
The myth that Amazon is a bookstore has some historical basis but is not
longer accurate. Amazon is also one of the largest, if not the largest,
online music stores, online electronics stores, online toy stores, and
online auction sites. Amazon has become an online general retailer who
also sells used goods as an major part of their business.
> Books make almost all of their money soon after publication, and neither
> libraries nor traditional used bookstores affect that much. They both
> mostly deal in books that have been out for a while.
It is also likely that Amazon will not have many, if any, used copies of
a book available shortly after publication. In practice only a very
small fraction of those people who buy a new book shortly after
publication will be selling it immediately. Mostly will keep it, at
least for a while. The letter cites some exceptions, but that's
precisely what they are. Used copies only become available *in
significant number* quite some time later.
> An online store that combines new and used sales in an integrated
> fashion has potential to gut new sales, especially during that time soon
> after publication when the book is selling best.
False. Soon after publication there will not be a significant number of
used copies available.
The idea that the authors' and publishers' objection is rooted solely in
a desire to protect new sales is also incorrect. The letter states:
As you know, these Marketplace sales earn no payment
for the authors and publishers of the books in question.
Only the seller and Amazon are paid.
and
Our members want nothing more than a fair opportunity
to earn royalties for their book sales whatever the
sales outlet.
Their obvious agenda is to work toward a system where used books sales
are under their control, and where authors and publishers earn royalties
for used book sales (notice that their letter does *not* state "a fair
opportunity to earn royalties for their *new* books sales"). The do
this by painting used book sales as "unfair." An effort to "correct"
this "failure" of copyright law by "closing this loophole" can't be far
behind.
What they are doing is *wrong*. That must remain clear, their effort to
expand the power of copyright power in print publishing must be blocked,
and the gross expansion of copyright power in the software and media
industries which inspired the authors and publishers must be reversed.
Jeffrey B. Siegal
> Except for textbooks, where new and used are often next to each other
> on the shelf
It isn't just textbooks. I remember college bookstores having new and used books of
all types next to each other. For a bookstore that sells both new and used books,
this is the most obvious and logical way to organize their stock.
Isaac
No need to be. Bruce is agreeing with you. He's just stepped into
a wierd place in the discussion. Neither the Guild's actual position
nor the extension we're discussing are in step with the First Sale
Doctrine.
Isaac
Pat McCann
> The authors and publishers are simply out of line, and they need to be
> slapped down (as do the software and media copyright holders who
> inspired them).
Probably. As long has few enough people find it practical to scan
newly-purchaced-and-soon-resold or borrowed books into their laptops
at which time the paper publishers would be in the same boat as the
digital media publishers. Maybe they're looking to get a head start.
But I suspect that the paper publishers are just trying to join the
frenzy of the mob looting the federal system for legalized plunder. Who
doesn't? It's democracy in action. You can hardly fault the mobsters
when they ask for favors or even if they buy them fair-and-square in the
legal market established by past election reform law. It's the lawmakers
who maintain this racket and your fellow citizens that re-elect
lawmakers who go along with the racket that need our condemnation. Slap
THEM down. We need about 12 years of 5% encumbent re-election instead
of 95% re-election. But voters are as selfish as the publishers; they
just have to keep that legislator with seniority because they return
more pork than a decent, principled, new legislator would. I suspect
we'll go a lot further down the path to some unholy blend of capitalism
regulated to the point of socialism favoring those currently in power
before it all gets so corrupt that people will get fed up and force a
fairly revolutionary change to establish what nobody can now predict.
Happy New Year!
Rahul Dhesi
>17 USC 109 does not require authors or publishers to support used book
>sales. All it does is make it so that used book sales are not
>prohibited by copyright. If an author or publisher were to refuse to
>deal with stores that sell used books, that would not be a copyright
>issue.
Precedent in the Seventh Circuit (see ProCD Inc. v. Zeidenberg) is that
if the package says that a specific license applies, then it does, even
if that license pre-empts copyright law and even if the alleged buyer
did not have the opportunity to read the terms of the license before the
"purchase". I saw nothing in the ProCD Inc. v. Zeidenberg opinion that
makes it apply only to software. At least within the jurisdiction of
the Seventh Circuit, any book can be accompanied by a use license, and
the use license may well restrict used book sales.
You can find the text of the ProCD opinion at:
http://www.softwareindustry.org/issues/docs-htm/procd-op.html
--
Rahul
Michael J Porter
=>> Except for textbooks, where new and used are often next to each other
=>> on the shelf
=>
=>It isn't just textbooks. I remember college bookstores having new and used books of
=>all types next to each other. For a bookstore that sells both new and used books,
=>this is the most obvious and logical way to organize their stock.
Text book authors can get out of this problem by releasing a new
revision. I've used old revision text books before in class, and
it is pain and not worth the trouble.
Mike
--
-
Mike Porter <mi...@udel.edu>
PGP Fingerprint: F4 AE E1 9F 67 F7 DA EA 2F D2 37 F3 99 ED D1 C2
Michael Meissner
Many libraries around here do (they collect paperbacks/etc& from the patrons
and then resell them as a fundraiser).
--
Michael Meissner, Red Hat, Inc. (GCC group)
PMB 198, 174 Littleton Road #3, Westford, Massachusetts 01886, USA
Work: meis...@redhat.com phone: +1 978-486-9304
Non-work: meis...@spectacle-pond.org fax: +1 978-692-4482
Pat McCann
> Precedent in the Seventh Circuit (see ProCD Inc. v. Zeidenberg) is that
> if the package says that a specific license applies, then it does, even
> if that license pre-empts copyright law and even if the alleged buyer
> did not have the opportunity to read the terms of the license before the
> "purchase". I saw nothing in the ProCD Inc. v. Zeidenberg opinion that
> makes it apply only to software. At least within the jurisdiction of
> the Seventh Circuit, any book can be accompanied by a use license, and
> the use license may well restrict used book sales.
>
> You can find the text of the ProCD opinion at:
>
> http://www.softwareindustry.org/issues/docs-htm/procd-op.html
Thank you MUCH for that reference. Very enlightening/frightening
reading. (Though parts of it read very informal like no federal court
opinion I've read before (a couple dozen). I'm not sure if that's a
reflection of poor education or good sense.)
It shows how the legal system can make the reading of legislation
a futile activity. The courts manage to read into what they think
(quite rightly usually) will make society and commerce work well
(as they see it). People let them get away with it because they
generally like the results and are willing to live with the
attendant injustices and breaking of rules and logic.
Note that this court reversed another federal court on two issues.
If two federal courts can't agree, is it worthwhile considering
these issues ourselves? I think so, because we still influence
each others opinion (and thus some behavior) regarding the issues
at least until the highest courts give their views.
That opinion came out in 1996; I'm suprised I haven't seen it
before. Have any later opinions referred to it or conflicted
with it? Does anyone know how to find opinions that refer to
other opinions? Are there no-cost online searchers for this
somewhere anybody knows about? I'll try Google.
There was one thing in it that people around here might like though:
"Someone who found a copy [...] on the street would not be affected
by the shrinkwrap license..." (but still by copyright law, of course.)
I wonder how far THAT statement would get you in (even his) court.
Pat McCann
> You can find the text of the ProCD opinion at:
>
> http://www.softwareindustry.org/issues/docs-htm/procd-op.html
That judge thinks that if I take my ticket back to Ticketblaster
or Airworst and tell them I don't like what's on the back of it,
they'll give me my money back. I'd like to see him try it in a
few cases I can think of - even if he did it the moment he
received the ticket.
And I wonder what law they'd dredge up to prevent a person or
a whole organized group of people from repeatably buying and
returning for refund a bunch of opened warranty- or license-
or other contract-enclosed products.
I think the judge appealed to a commerce principle that doesn't
exist in general, only in particular cases. The lower court
found that it didn't for software, the upper court found that
it did, but I didn't see (upon first reading anyway) any more
reason than that the judge thought it would make commerce function
better.
Isaac
>
>
>That opinion came out in 1996; I'm suprised I haven't seen it
>before. Have any later opinions referred to it or conflicted
circuit judge seemed to be pretty sure that whatever inequities might
result from one sided licenses would get sorted out by market
forces since consumers would shop around to get favorable terms or
would accept less favorable ones for lower prices. That seems so
incredible naive to me that I have trouble accepting the judge's
sincerity.
Isaac
Rahul Dhesi
>Thank you MUCH for that reference. Very enlightening/frightening
>reading. (Though parts of it read very informal like no federal court
>opinion I've read before (a couple dozen). I'm not sure if that's a
>reflection of poor education or good sense.)
Even though I think Judge Easterbrook used very faulty logic in ProCD, I
must admit that I find his writing style makes for delightful reading.
I wish more court opinions were as easily read and understood by lay
people. Another of his opinions (unrelated to this one), which I happen
to agree with, was equally fun reading:
http://laws.findlaw.com/7th/974131.html
>It shows how the legal system can make the reading of legislation
>a futile activity. The courts manage to read into what they think
>(quite rightly usually) will make society and commerce work well
>(as they see it)....
Judges make decisions exactly like car buyers buy cars and men and women
find lovers and spouses: (a) first they decide what feels right,
(b) then they look for and find reasons to justify their choice to
everybody else. From a moral perspective this may well be the right
strategy -- shouldn't the decisions we make feel right to us at a very
gut level? The problem I suppose is that judges are not *supposed* to
do this. But they do anyway. And perhaps this is how things should be,
for the Supreme Court does this too, and it seems quite reasonable for
all lower courts to follow that example.
I agree with you, judges are incredibly creative when they want to be.
--
Rahul
Bruce Hayden
I wouldn't say most famous, but rather IMHO one of the worst reasoned
and scariest.
Barry Margolin
Isaac <is...@latveria.castledoom.org> wrote:
>I think it's the most famous "shrink wrap" license case. The
>circuit judge seemed to be pretty sure that whatever inequities might
>result from one sided licenses would get sorted out by market
>forces since consumers would shop around to get favorable terms or
>would accept less favorable ones for lower prices. That seems so
>incredible naive to me that I have trouble accepting the judge's
>sincerity.
While it does seem a bit naive, it really is the way a free market is
supposed to operate. Unfortunately, sometimes all the vendors decide to
adopt the same policy, and then consumers no longer have a choice. But if
consumers really don't like this, it should theoretically provide an
opportunity for some new vendor to jump in and fill the niche, grabbing
lots of business from those other vendors. If this doesn't happen, it's
probably not economically viable to offer the service that consumers really
want; the only way to make it happen would be for the government to force
all vendors to offer that version of the service, which would probably
drive all prices up.
--
Barry Margolin, bar...@genuity.net
Genuity, Burlington, MA
*** DON'T SEND TECHNICAL QUESTIONS DIRECTLY TO ME, post them to newsgroups.
Please DON'T copy followups to me -- I'll assume it wasn't posted to the group.
Rahul Dhesi
[ about shrink-wrap over a copyrighted work ]
>While it does seem a bit naive, it really is the way a free market is
>supposed to operate....
No it's not. A shrink-wrap license that covers a copyrighted work gives
the copyrighted holder all the benefits of copyright and then some more,
but does not give the public all the benefits that it was supposed to
get from copyright law. This negates the quid pro quo that was supposed
to be the basis of copyright law.
--
Rahul
Pat McCann
> I think it's the most famous "shrink wrap" license case. The
> circuit judge seemed to be pretty sure that whatever inequities might
> result from one sided licenses would get sorted out by market
> forces since consumers would shop around to get favorable terms or
> would accept less favorable ones for lower prices.
As M$'s lawyer wrote about in
http://www.law.berkeley.edu/journals/btlj/articles/13_3/Gomulkiewicz/html/text.html
aptly named "The License is the Product".
I wonder what fraction of consumers think that's what they're shopping
for and paying for?
BTW, do a google.com search for "ProCD Zeidenberg" (no quotes)
for some interesting (to some) reading. The good links are
scattered across many results pages.
Pat McCann
> Judges make decisions exactly like car buyers buy cars and men and women
> find lovers and spouses: (a) first they decide what feels right,
> (b) then they look for and find reasons to justify their choice to
> everybody else. From a moral perspective this may well be the right
> strategy -- shouldn't the decisions we make feel right to us at a very
> gut level? The problem I suppose is that judges are not *supposed* to
> do this. But they do anyway. And perhaps this is how things should be,
> for the Supreme Court does this too, and it seems quite reasonable for
> all lower courts to follow that example.
No to both points. Whether or not one thinks rules should be stretched
or broken to acheive one's ends, one shouldn't encourage it in others.
It tends to slowly breaks down society. We've come through 200 years
in fairly good shape mainly because of the incredible integrity (at
least concering important things) of our higher judges who have
interpreted our written law remarkably fairly. But we're on a downward
slope which got way too steep mid-1900's so that today we're beginning
to laugh at claims that we're a country of "laws, not men". When many
judges just "do the right thing", we become a country of men, not laws.
Except that there are so many more laws than men I guess we'll be OK.
Pat McCann
> A shrink-wrap license that covers a copyrighted work gives
> the copyrighted holder all the benefits of copyright and then some more,
> but does not give the public all the benefits that it was supposed to
> get from copyright law. This negates the quid pro quo that was supposed
> to be the basis of copyright law.
Well, that was ONE of the basises. (The one mentioned in our
Constitution was to "Promote" ....) And the basis YOU mention is
not necessarily an quid pro quo (equal exchange). But I get your point.
Question: What benefits were you supposed to get from copyright law
that you don't get if a license is used? I may not be asking the
right question; let me pose something: I've just written and
copyright-registered a optimizing compiler (yeh, right) so that my
commercial closed-source programs run twice as fast as anybody else's.
I've licensed it to nobody so as to not loose my competitive advantage.
(Theoretically, I could even publish the source and keep much of my
advantage since reimplementing the non-copyrighted ideas would take time.)
Now, wouldn't the public get MORE advantage from a shrinkwrap license
(under contract law) of this compiler than if I relied just on copyright
law? That IS how licensing is supposed to work to our advantage and
make commerce work better, which is what was being discussed (I guess
I snipped too much).
Sure, I could put all kinds of draconian (but the law doesn't permit
"unconscionable" for some reason) conditions (like, in my view, the
GPL's "you must publish your source to link to mine" clause) in the
license, but you're still left with more advantange than you might
be under pure copyright law if the owner so chooses.
Whether the conditions concern the stuff of copyright law ("you can't
copy if you don't do this") or not ("you can't run in an commercial
environment" or "you can't decompile" or "you can't benchmark") is
irrelevant to anything I can think of (execpt for some people's peculiar
definition of "shrinkwrap").
Jeffrey Siegal
> Now, wouldn't the public get MORE advantage from a shrinkwrap license
> (under contract law) of this compiler than if I relied just on copyright
> law?
Your hypothetical is not rooted in reality and therefore not
particularly meaningful. The assumptions made under copyright law are:
1. Authors will want to release their works in order to commercially
exploit them, somehow or another.
2. Contract law is not enough. If someone finds a copy on the street,
contract law alone prevent them from making a million copies and selling
them.
Therefore, copyright sets out a framework under which authors can
release their works on a limited basis. It is a reasonable position
that, in doing so, it preempts other legal mechanisms for doing to same
thing in order to provide a *uniform* market structure. That sort of
compromise "one size fits all" solution may be imperfect, but it still
has a benefit in promoting commerce by reducing transaction costs (i.e.
the need understand different legal mechanisms).
However, that doesn't seem to be the way the world is going, with an
increasingly "anything goes" attitude toward license agreements.
Nesta Stubbs
> While it does seem a bit naive, it really is the way a free market
> is supposed to operate. Unfortunately, sometimes all the vendors
> decide to adopt the same policy, and then consumers no longer have a
> choice. But if consumers really don't like this, it should
> theoretically provide an opportunity for some new vendor to jump in
> and fill the niche, grabbing lots of business from those other
> vendors.
There is not just one market tho. Those vendors are in the market for
investment capital as well. They have to appeal to investors, and
investors tend to be picky about the business model, IP assets, and
licensing practices of the companies they invest in.
Obviously one can bootstrap their company without any investment
capital, but in many markets were the competing players are very
large, you are going to need to shop the capital market a some point
in order to grow to a size capable of offering real alternatives to
the consumer market.
If a company can offer it's investors bigger returns by hording it's
IP, and doing things like selling expiring licenses which cost nothing
to produce, then other companies in that sector are going to have to
follow suit or come up with some other way to offer a comparable rate
of profit.
One of the bigger things that happened in the last two years was that
investors became willing to give capital to companies that did not
horde their intellectual assets in the way that software companies
previously had. Wether this is a long-term shift in the capital
market or not is unknown, but the state of most "Open Source" stocks
indicates that it's not a permenant shift. The recent capital market
contractions don't bode well for all the fledglin' FSBs.
Given the historic trends of the U.S., it would seem that the world we
get is the one which attempts to maximize the rate of profit, usually
in the short-term, with little regards for the social, or long-term
impacts of those decisions. What the investors are moving towards is
a controlled pipe from them to the consumer, with absolute control
over their IP. It's their dream commodity. Even if this is not
possible to implement in a foolproof manner, they will do their best
to ensure that the legal support is there.
"Open Source" in many ways only addresses one side of the equation in
it's economic arguments. That is the consumer->vendor relation. The
dominant force in late-capitalism is the investor->company relation
tho. The discussions on the FSB list over the last couple years are
just scratching the surface of that relation.
> If this doesn't happen, it's probably not economically viable to
> offer the service that consumers really want; the only way to make
> it happen would be for the government to force all vendors to offer
> that version of the service, which would probably drive all prices
> up.
What determines economic viability? The rate of profit, which is
relative. The rate of profit an industry or single company provides
not only has to be positive, it has to be competitive with other
industries and companies.
Isaac
>In article <slrn9556o...@latveria.castledoom.org>,
>Isaac <is...@latveria.castledoom.org> wrote:
>>I think it's the most famous "shrink wrap" license case. The
>>circuit judge seemed to be pretty sure that whatever inequities might
>>result from one sided licenses would get sorted out by market
>>forces since consumers would shop around to get favorable terms or
>>would accept less favorable ones for lower prices. That seems so
>>incredible naive to me that I have trouble accepting the judge's
>>sincerity.
>
>While it does seem a bit naive, it really is the way a free market is
>supposed to operate. Unfortunately, sometimes all the vendors decide to
>adopt the same policy, and then consumers no longer have a choice. But if
>consumers really don't like this, it should theoretically provide an
>opportunity for some new vendor to jump in and fill the niche, grabbing
>lots of business from those other vendors. If this doesn't happen, it's
>probably not economically viable to offer the service that consumers really
the lack of variety proves that alternative licenses not economically viable.
I think the license for Word can become much more onerous before there
will be any significant opportunity for a competing product.
>want; the only way to make it happen would be for the government to force
>all vendors to offer that version of the service, which would probably
>drive all prices up.
I don't think that deciding ProCD the other way means that the government
is forcing uniformity. The result could have been as simple as requiring
vendors to make their license terms available at the point of purchase with
the penalty being that the limits in the copyright statute are assumed
if the terms aren't available.
Isaac
Rahul Dhesi
>I don't think that deciding ProCD the other way means that the government
>is forcing uniformity. The result could have been as simple as requiring
>vendors to make their license terms available at the point of purchase with
>the penalty being that the limits in the copyright statute are assumed
>if the terms aren't available.
This still allows a copyright owner to get his benefits under copyright
law while denying the public its benefits under copyright law. Not
good. When Congress frames laws intended to strike a balance between
competing interests, courts should interpret those laws to maintain that
balance.
--
Rahul
Isaac
People bargain away their rights and priveleges all the time. I
don't see anything wrong with that in principle provided that the
bargaining does take place. The problem is of course that
over the counter software purchases normally don't represent
any kind of bargaining. Of course Judge Easterbrook glosses
over this by suggesting that most software sales don't occur
this way.
I was trying to make a different point. I believe that the judge's
argument that he was allowing a free market to function was faulty
since he could have simply enforced fair rules of the game and still
ruled in favor of Zeidenberg. I find the judge's use of the word
"inconspicuous" to describe terms hidden away inside the package to
be very tortured.
Isaac
Joseph Pietro Riolo
On Wed, 3 Jan 2001, Jeffrey Siegal wrote:
> Your hypothetical is not rooted in reality and therefore not
> particularly meaningful. The assumptions made under copyright law are:
>
> 1. Authors will want to release their works in order to commercially
> exploit them, somehow or another.
>
> 2. Contract law is not enough. If someone finds a copy on the street,
> contract law alone prevent them from making a million copies and selling
> them.
I don't understand #2. If one finds a copy on the street and it is
not copyrighted, he is free to make a million copies because he
does not enter any contract or agreement at the first place. No?
Joseph Pietro Riolo
<ri...@voicenet.com>
Jeffrey Siegal
> > 2. Contract law is not enough. If someone finds a copy on the street,
> > contract law alone prevent them from making a million copies and selling
> > them.
>
> I don't understand #2. If one finds a copy on the street and it is
> not copyrighted, he is free to make a million copies because he
> does not enter any contract or agreement at the first place. No?
Typo.
"...contract law alone *does not* prevent them..."
Pat McCann
Correct. I read #2 with a "doesn't" in it and didn't even catch the
error. And I fully agree with both numbered points.
But my hypothetical is FULL of meaning. I DO want to release my work
(the compiler) as in #1, but I won't do it unless I can license its use
under conditions of my choosing (lets think of the anti-benchmarking
condition as one outrageous example). (More likely, I wouldn't have
developed it the first place for just internal use.) So I guess the
question comes down to whether commerce/whatever works better if we
allow wide latitude in conditions or not. I think it's a hard case to
show that greatly restricting the freedom of the licensor to choose his
conditions works better in the long run, as much as we might not like
some choices. There is a responsibility of the consumer to convince
such licensors to mend their ways. And we see've seen a lot of good
choices along with the bad recently.
What's at issue here is how license contracts may cover a work. Can
they (or should they) restrict activity not restricted by copyright?
Does doing so confound the copyright regime that it's bad for society
or is it unconstitutional? Neither in current law, but I'd be
interested in seeing an explanation of the other view.
If you say software's license conditions can't restrict activities not
covered by copyright law, how can you say a license to lease a car
can't restrict activities not covered by patent law?
Jeffrey Siegal
> But my hypothetical is FULL of meaning. I DO want to release my work
> (the compiler) as in #1, but I won't do it unless I can license its use
> under conditions of my choosing (lets think of the anti-benchmarking
> condition as one outrageous example).
You suggest that's "activity not restricted by copyright" but in fact it
is activity addressed by copyright law. In particular, 17 USC
117(1)(a).
That's the issue: Can license agreements construct an alternate regime
of IP commerce which is not "outside" the scope of copyright, but rather
very much within it, just with different rules. Copyright
purists/traditionalists say no, but current practice and trends (UCITA,
etc.) tend to say yes.
Pat McCann
> I find the judge's use of the word
> "inconspicuous" to describe terms hidden away inside the package to
> be very tortured.
Yes. But had he ruled otherwise, the fine print on the outside
would probably just say: "Full license terms are available from the
manufacturers of the software inclosed" (which needn't even be the
company doing the packaging in case of, say, a peripheral & CDROM).
Like those licenses that refer you to "tariffs", etc., or with
terms that may change so you must check some website every week.
Grrr.
Barry Margolin
A license agreement is a contract, and you can specify almost anything in a
properly executed contract (please note that I said "almost" -- I know the
law has some constraints). The issue with retail software has always been
whether a shrinkwrap license is a "properly executed contract" so that the
terms are binding on the customer, and the judge's decision in ProCD was
apparently that it is (note: I haven't read the decision, I'm basing that
statement on what I've read in this thread). The issue in this thread
appears to be whether the judge was correct to make that decision. Did he
claim that his decision was based on aspects of copyright law?
Barry Margolin
Isaac <is...@latveria.castledoom.org> wrote:
>On Wed, 03 Jan 2001 16:39:46 GMT, Barry Margolin <bar...@genuity.net> wrote:
>>In article <slrn9556o...@latveria.castledoom.org>,
>>Isaac <is...@latveria.castledoom.org> wrote:
>>>I think it's the most famous "shrink wrap" license case. The
>>>circuit judge seemed to be pretty sure that whatever inequities might
>>>result from one sided licenses would get sorted out by market
>>>forces since consumers would shop around to get favorable terms or
>>>would accept less favorable ones for lower prices. That seems so
>>>incredible naive to me that I have trouble accepting the judge's
>>>sincerity.
>>
>>While it does seem a bit naive, it really is the way a free market is
>>supposed to operate. Unfortunately, sometimes all the vendors decide to
>>adopt the same policy, and then consumers no longer have a choice. But if
>>consumers really don't like this, it should theoretically provide an
>>opportunity for some new vendor to jump in and fill the niche, grabbing
>>lots of business from those other vendors. If this doesn't happen, it's
>>probably not economically viable to offer the service that consumers really
>I understand how a free market is supposed to work, but I don't see how
>the lack of variety proves that alternative licenses not economically viable.
>I think the license for Word can become much more onerous before there
>will be any significant opportunity for a competing product.
Like I said, it would only happen if "consumers really don't like this."
The simple fact is that most consumers are not overly bothered by typical
license agreements. I prefer open source software, but I've purchased
plenty of proprietary and shareware software for my Macintosh because I
don't have any particular need to do things that are prohibited by their
licenses.
>>want; the only way to make it happen would be for the government to force
>>all vendors to offer that version of the service, which would probably
>>drive all prices up.
>I don't think that deciding ProCD the other way means that the government
>is forcing uniformity. The result could have been as simple as requiring
>vendors to make their license terms available at the point of purchase with
>the penalty being that the limits in the copyright statute are assumed
>if the terms aren't available.
So your issue is being able to read the license before you buy, not that
the license terms are overly prohibitive. I guess that can be an issue,
but since most shrinkwrap licenses are virtually identical, I can pretty
much guess what it says without having to read it. How much of a hardship
is it to have to return the software if you open the box and find that you
object to the license?
Jeffrey Siegal
> A license agreement is a contract, and you can specify almost anything in a
> properly executed contract (please note that I said "almost" -- I know the
> law has some constraints). The issue with retail software has always been
> whether a shrinkwrap license is a "properly executed contract"
Not if such a contract is depending on state law for its enforcability.
Such a state law is preempted by federal copyright law
Vault v. Quaid:
Section 117 of the Copyright Act permits an owner of a computer program
to make an adaptation of that program provided that the adaptation is
either "created as an essential step in the utilization of the computer
program in conjunction with a machine," § 117(1), or "is for archival
purpose only," § 117(2).30 The provision in Louisiana's License Act,
which permits a software producer to prohibit the adaptation of its
licensed computer program by decompilation or disassembly, conflicts
with the rights of computer program owners under § 117 and clearly
"touches upon an area" of federal copyright law. For this reason, and
the reasons set forth by the district court, we hold that at least this
provision of Louisiana's License Act is preempted by federal law, and
thus that the restriction in Vault's license agreement against
decompilation or disassembly is unenforceable.
Isaac
>
>Like I said, it would only happen if "consumers really don't like this."
>The simple fact is that most consumers are not overly bothered by typical
>license agreements. I prefer open source software, but I've purchased
>plenty of proprietary and shareware software for my Macintosh because I
>don't have any particular need to do things that are prohibited by their
>licenses.
how much they are bothered by them. I remember once buying a compiler
from Borland that had restrictions on the types of programs that could
be written with it.
>
>So your issue is being able to read the license before you buy, not that
>the license terms are overly prohibitive. I guess that can be an issue,
different result in ProCD if the judge had been so inclined. I am
also bothered by some license terms.
>but since most shrinkwrap licenses are virtually identical, I can pretty
>much guess what it says without having to read it. How much of a hardship
>is it to have to return the software if you open the box and find that you
>object to the license?
>
which you purchased it. In any event, I don't believe that the terms
at issue in the ProCD case could have been predicted without seeing
them.
Isaac
Tracy Aquilla
> Barry Margolin wrote:
> > A license agreement is a contract, and you can specify almost anything in a
> > properly executed contract (please note that I said "almost" -- I know the
> > law has some constraints). The issue with retail software has always been
> > whether a shrinkwrap license is a "properly executed contract"
>
> Not if such a contract is depending on state law for its enforcability.
> Such a state law is preempted by federal copyright law
>
> Vault v. Quaid:
Note that recently, at least two courts declined to follow that case (for good
reason, IMHO).
> Section 117 of the Copyright Act permits an owner of a computer program
> to make an adaptation of that program provided that the adaptation is
> either "created as an essential step in the utilization of the computer
> program in conjunction with a machine," § 117(1), or "is for archival
> purpose only," § 117(2).30
But is a "licensee" of a computer program necessarily an "owner" of that program
under section 117? Only owners have the rights defined under section 117;
licensees apparently have no such statutory rights.
> The provision in Louisiana's License Act,
> which permits a software producer to prohibit the adaptation of its
> licensed computer program by decompilation or disassembly, conflicts
> with the rights of computer program owners under § 117 and clearly
> "touches upon an area" of federal copyright law. For this reason, and
> the reasons set forth by the district court, we hold that at least this
> provision of Louisiana's License Act is preempted by federal law, and
> thus that the restriction in Vault's license agreement against
> decompilation or disassembly is unenforceable.
This court's decision apparently rests on a determination that a licensee is an
owner under section 117. I have a hard time agreeing with that determination.
Also, I am not convinced that section 117 allows one to decompile or otherwise
disassemble a program, so even if the licensee were construed to be an owner
under 117, he would still not have a statutory right to decompile or disassemble
the program, unless perhaps he could show that decompiling constitutes "an
essential step in the utilization" of the program, or for archival purpose only.
I can't imagine anyone requiring a decompiled adaptation in order to use the
program, and certainly not for strictly archival purposes. But I am not a
computer programmer and I do not have much experience in the area of copyright
law, so perhaps I am missing something here.
Tracy
--
Thomas T. Aquilla, Ph.D.
Registered Patent Attorney No. 43,473
http://www.bpmlegal.com/
Jeffrey Siegal
> > Section 117 of the Copyright Act permits an owner of a computer program
> > to make an adaptation of that program provided that the adaptation is
> > either "created as an essential step in the utilization of the computer
> > program in conjunction with a machine," § 117(1), or "is for archival
> > purpose only," § 117(2).30
>
> But is a "licensee" of a computer program necessarily an "owner" of that program
> under section 117?
Not according to MAI Basic and later decisions.
However, note that the original wording of 117 from CONTU was "rightful
possessor" not "owner." There doesn't appear to be any record anywhere
of precisely when or why that was changed. The consipracy theory was
that industry lobbyists were looking for an "out" and got that change as
a way to gut 117. However, I've seen no evidence of that either. Given
that it took many years for that distinction to be relevant in court, my
personal opinion was that it that the change was probably just made for
simplification and that gutting 117 was really an unintended
consequence.
> Only owners have the rights defined under section 117;
> licensees apparently have no such statutory rights.
> Also, I am not convinced that section 117 allows one to decompile or otherwise
> disassemble a program
It has been a while since I read that decision, but my point was about
preemption, not reverse engineering. I think (from reading just this
section), the court was viewing reverse engineering as a kind of "use."
Section 117 does not define "use."
Tracy Aquilla
> Tracy Aquilla wrote:
> > > Section 117 of the Copyright Act permits an owner of a computer program
> > > to make an adaptation of that program provided that the adaptation is
> > > either "created as an essential step in the utilization of the computer
> > > program in conjunction with a machine," § 117(1), or "is for archival
> > > purpose only," § 117(2).30
> >
> > But is a "licensee" of a computer program necessarily an "owner" of that program
> > under section 117?
>
> Not according to MAI Basic and later decisions.
Thank you. I tend to agree with those decisions.
> However, note that the original wording of 117 from CONTU was "rightful
> possessor" not "owner." There doesn't appear to be any record anywhere
> of precisely when or why that was changed.
I am not aware of any. But obviously, Congress amended that language, and presumably
had a reason for doing so.
> The consipracy theory was
> that industry lobbyists were looking for an "out" and got that change as
> a way to gut 117. However, I've seen no evidence of that either.
That theory is not entirely without merit. But even if it were true, that is how laws
are made, like it or not.
> Given
> that it took many years for that distinction to be relevant in court, my
> personal opinion was that it that the change was probably just made for
> simplification and that gutting 117 was really an unintended
> consequence.
I don't see that the chosen language guts 117 at all.
> > Only owners have the rights defined under section 117;
> > licensees apparently have no such statutory rights.
>
> > Also, I am not convinced that section 117 allows one to decompile or otherwise
> > disassemble a program
>
> It has been a while since I read that decision, but my point was about
> preemption, not reverse engineering. I think (from reading just this
> section), the court was viewing reverse engineering as a kind of "use."
> Section 117 does not define "use."
It has been awhile since I read it also, however, it seems to me that the court in
that case was perhaps a bit confused and came to some erroneous conclusions (as noted
above).
Jeffrey Siegal
> I am not aware of any. But obviously, Congress amended that language, and presumably
> had a reason for doing so.
Actually, it didn't "amend" it. CONTU drafted wording which was
recommended to Congress. Congress adopted something else. We don't
know why.
> > Given
> > that it took many years for that distinction to be relevant in court, my
> > personal opinion was that it that the change was probably just made for
> > simplification and that gutting 117 was really an unintended
> > consequence.
>
> I don't see that the chosen language guts 117 at all.
Sure it does, since computer programs are virtually always licensed, not
sold. Since 117 applies only to computer programs and computer users
are almost never "owners" in this sense, 117 is vacuous in practice.
The MAI Basic court considered why legislation would be written to carve
out rights for "owners" who don't, in practice, exist and concluded that
the term "owner" referred to the holder of the copyright. That's highly
tortured, in my view.
> > It has been a while since I read that decision, but my point was about
> > preemption, not reverse engineering. I think (from reading just this
> > section), the court was viewing reverse engineering as a kind of "use."
> > Section 117 does not define "use."
>
> It has been awhile since I read it also, however, it seems to me that the court in
> that case was perhaps a bit confused and came to some erroneous conclusions (as noted
> above).
Perhaps so, although reverse engineering has been widely found to be
fair use, so it may not matter whether the court finds it in 117 or
not. If that's an error, it may be an irrelevant one. (But I don't
really see where it is an error. Unlike DMCA, 117 does not refer to
"authorized" use, just the broad concept of "utilization.").
Lee Hollaar
>However, note that the original wording of 117 from CONTU was "rightful
>possessor" not "owner." There doesn't appear to be any record anywhere
>of precisely when or why that was changed.
One plausible explaination that I've heard is that there was a concern
with people renting or borrowing a computer program (making them a
"rightful possessor"), making an "archive copy," and then returning it
to owner. Of course, when they return it they should also get rid of
the "archive copy," but one doesn't feel like an infringer when one
*doesn't* do something.
Congress had similar concerns about record rental stores, and in 1984
amended Section 109 to ban the rental of sound recordings. (I remember
record rental stores -- low rental fees, but always asking if you want
to buy blank recording tape.) In 1990, a similar ban on renting most
computer software was added.
So, if that was the concern, it is no longer a valid one.
Jeffrey Siegal
> Tracy Aquilla wrote:
> > I am not aware of any. But obviously, Congress amended that language, and presumably
> > had a reason for doing so.
>
> Actually, it didn't "amend" it. CONTU drafted wording which was
> recommended to Congress. Congress adopted something else. We don't
> know why.
The one thing we do know is that Congress did *not* intend to preclude
independent third party servicing of computers, which was one effect of
the change in wording from "rightful possessor" (and was the central
issue of MAI Basic). When it came time to correct what was clearly a
*mistake*, there *were* industry lobbyists involved who made sure the
"correction" was very narrowly written.
Lee Hollaar
>Sure it does, since computer programs are virtually always licensed, not
>sold. Since 117 applies only to computer programs and computer users
>are almost never "owners" in this sense, 117 is vacuous in practice.
Except for much of the "open source" or "free" software, where you may
actually own that copy, particularly if the license has only to do with
later distribution.
Barry Margolin
I can't speak to other open source licenses, but in the case of the GPL you
don't own the copy. It's also licensed, but the license explicitly permits
redistributing and sublicensing, so long as the license to the recipient is
no more restrictive than the GPL.
Graham Murray
> Question: What benefits were you supposed to get from copyright law
> that you don't get if a license is used?
Take the example of videos, CDs and DVDs. Under plain copyright there
would be no restrictions on where they could be sold or
played/viewed. Once you purchased a legitimate copy (or paid the
copyright holder a fee to make the copy) what you do with your
physical copy (except create another copy) should not be of any
concern to the copyright owner. Copyright would only affect the
copying process not how the product is used. In general licences
restrict the rights you would otherwise have under
copyright. Whichever official or body that decided that listening to
an audio recording, viewing a video/DVD and running software are acts
of copying (and therefore subject to the whim of the copyright owner)
has a lot to answer for.
Roger Schlafly
> > Actually, it didn't "amend" it. CONTU drafted wording which was
> > recommended to Congress. Congress adopted something else. We don't
> > know why.
> The one thing we do know is that Congress did *not* intend to preclude
> independent third party servicing of computers, which was one effect of
> the change in wording from "rightful possessor" (and was the central
> issue of MAI Basic). When it came time to correct what was clearly a
> *mistake*, there *were* industry lobbyists involved who made sure the
> "correction" was very narrowly written.
How do you know what Congress intended? Frequently there are changes
to the wording in pending bills at the request of lobbyists in
closed door meetings. Congressmen don't usually like to admit to
this, but it happens. They like to be able to deny that they know
what they are doing. My hunch is that the Congressmen who followed
this bill closely knew exactly what they were doing.
Isaac
>
>I can't speak to other open source licenses, but in the case of the GPL you
>don't own the copy. It's also licensed, but the license explicitly permits
>redistributing and sublicensing, so long as the license to the recipient is
>no more restrictive than the GPL.
>
Can you elaborate on why you think someone who purchases copies of
GPL'd software doesn't own the copy.
Here's why I would argue that you can own copies of GPL'd software:
In the case of shrinkwrap or clickwrap, there are at least some actions
that can be construed as assent to license terms, but for someone
who runs a purchased binary I just don't see any kind of contract
formation.
Maybe someone who modifies distributes the code will encounter and
assent to the license terms, but I would think that a mere user
owns his or her copies outright.
Of course even under the terms of the GPL, someone who wants to
run binary will find that he is allowed all of the rights allowed
to owners of software under copyright law. The GPL even says
that its terms do not apply to running the software.
Isaac
Barry Margolin
Copyright also applies to "performances" (as in plays and music), and I
suspect they decided that these acts were analogous enough to performing
that copyright could be invoked.
However, I've never heard that "listening to an audio record" was
considered an act of copying. Can you give an example where this was done?
Barry Margolin
If all this is true, then what is the difference between owning and not
owning the copy? The definition of "ownership" is having some exclusive
rights or control that a non-owner doesn't have (e.g. since you don't own
my car, if you drive it without my permission that's theft). By what
definition of "own" do you confer any special rights to the owner of a copy
of GPLed software?
Joseph Pietro Riolo
On Thu, 4 Jan 2001, Isaac wrote:
> I don't think it's clear that you don't own copies of GPL'd software.
> Can you elaborate on why you think someone who purchases copies of
> GPL'd software doesn't own the copy.
What do you get: 1) A license to use a GPL software. 2) Or, a copy of
GPL software without a license? The terms of the GPL license does more
than what the copyright allows and disallows (for example, you cannot
use fair use in any GPL software - that is, use a portion of GPL software
inside other non-GPL software). I think that the answer is #1.
Joseph Pietro Riolo
<ri...@voicenet.com>
Jeffrey Siegal
> Jeffrey Siegal wrote:
> > > Actually, it didn't "amend" it. CONTU drafted wording which was
> > > recommended to Congress. Congress adopted something else. We don't
> > > know why.
> > The one thing we do know is that Congress did *not* intend to preclude
> > independent third party servicing of computers, which was one effect of
> > the change in wording from "rightful possessor" (and was the central
> > issue of MAI Basic). When it came time to correct what was clearly a
> > *mistake*, there *were* industry lobbyists involved who made sure the
> > "correction" was very narrowly written.
>
> How do you know what Congress intended?
Because in the aftermath of MAI Basic, when there was a very real
question about whther independent third-party servicing of computers,
and even other non-computer devices (copiers, etc.) would be precluded,
there was a lot of discussion about what Congress intended and several
of the key committee memebers made it clear they did not intend this.
The almost immediate action to reverse the substance of MAI Basic with
legislation confirms that these denials were not empty rhetoric.
Jeffrey Siegal
> Copyright also applies to "performances" (as in plays and music), and I
> suspect they decided that these acts were analogous enough to performing
> that copyright could be invoked.
Only *public* performance is relevant for copyright purposes. Private
use is not.
Copyright-based "use" restrictions derive from the MAI Basic decision
which found that the "copying" of licensed computer programs in RAM that
occurs when a computer executes are actual copies for copyright purposes
a program and therefore require the permission of the copyright holder.
Jeffrey Siegal
> If all this is true, then what is the difference between owning and not
> owning the copy?
In practice, it seems to be that if there is doucment somewhere written
by the copyright holder (maybe inside a sealed box) that says "you do
not own this copy" then you don't own it.
In reality, the concept of ownership is slippery when it comes to
intangibles. Ownership is really just what the law says it is.
Jeffrey Siegal
> (for example, you cannot
> use fair use in any GPL software - that is, use a portion of GPL software
> inside other non-GPL software).
Where does GPL say that fair use is precluded? Remember, fair use
doesn't just mean "use a portion." The determination of fair use
requires consideration of all four factors:
1. Purpose and character of use
2. Nature of the copyrighted work
3. Amount of work used
4. Effect of use on potential market for or value of the work
(From memory. See 17 USC 107.)
In practice, most of the fair use cases I've read seem to ultimately
rely most heavily on item 4. In the context of free software, this
would require some fair amount of creativity to apply properly.
John Hasler
> What do you get: 1) A license to use a GPL software. 2) Or, a copy of
> GPL software without a license?
You get a copy of the software with an attached license which that very
license says you do not have to agree to.
> for example, you cannot use fair use in any GPL software...
Of course you can.
> ... - that is, use a portion of GPL software inside other non-GPL
> software
That is not fair use. Fair use does not allow you to use bits of my
program in yours.
In any case, being party to a license agreement with respect to a work and
owning a copy of that work are not mutually exclusive.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, Wisconsin
Isaac
wrote:
>
>
>What do you get: 1) A license to use a GPL software. 2) Or, a copy of
>GPL software without a license? The terms of the GPL license does more
>than what the copyright allows and disallows (for example, you cannot
>use fair use in any GPL software - that is, use a portion of GPL software
>inside other non-GPL software). I think that the answer is #1.
>
its terms do not apply. So what would be the terms of the license you
think is applicable? Since permission to run the binary is not
covered by or granted by the license, what does give you the right to
make the copy in RAM inherent in running a binary compiled from GPL'd code?
I suggest the answer to be 17 U.S.C 117(1).
Your assertion that you cannot use fair use for GPL'd software is
just plain wrong and probably not relevant to determining ownership.
You don't need to own something to be able to use fair use. You
can quote material out of a library book for example.
About the only limitation I see on ownership of GPLd code is that
the you may not be able to sell your copy of the software without
complying with the license terms concerning distribution.
Isaac
Isaac
>
>If all this is true, then what is the difference between owning and not
>owning the copy? The definition of "ownership" is having some exclusive
>rights or control that a non-owner doesn't have (e.g. since you don't own
>my car, if you drive it without my permission that's theft). By what
>definition of "own" do you confer any special rights to the owner of a copy
>of GPLed software?
>
I think the real definition we want to use is whatever was intended by
17 U.S.C 117.
Isaac
Jeffrey Siegal
> That is not fair use. Fair use does not allow you to use bits of my
> program in yours.
It *can*. It depends. See my other message in this thread.
Isaac
>Joseph Pietro Riolo writes:
>> What do you get: 1) A license to use a GPL software. 2) Or, a copy of
>> GPL software without a license?
>
>You get a copy of the software with an attached license which that very
>license says you do not have to agree to.
>
>> for example, you cannot use fair use in any GPL software...
>
>Of course you can.
>
>> ... - that is, use a portion of GPL software inside other non-GPL
>> software
>
>That is not fair use. Fair use does not allow you to use bits of my
>program in yours.
>
of your program in my program. Someone has already listed the fair use
factors to be considered when determining whether a given use is fair
use.
>In any case, being party to a license agreement with respect to a work and
>owning a copy of that work are not mutually exclusive.
This might literally be true, but most of the shrinkwrap licenses I've seen
start off by eroding those rights copy owners are granted under the
copyright statute. They sometimes go even further and take away rights that
even a non owner might expect to have (like being able to write a critical
review). Being a licensee/owner turns out to be decidedly less than being
a licensee/owner.
Isaac
Rahul Dhesi
>...since computer programs are virtually always licensed, not
>sold.
This has not been shown to be true outside the jursdiction of
the Seventh Circuit.
--
Rahul
Peter Seebach
John Hasler <jo...@dhh.gt.org> wrote:
>That is not fair use. Fair use does not allow you to use bits of my
>program in yours.
It certainly might. A small clip, used because it's a fairly basic functional
piece, could easily be covered under either fair use or merger doctrine.
In other words, just because Dennis Ritchie was the first to write
while (*s++ = *t++)
;
doesn't mean I can't use it too.
-s
--
Copyright 2001, All rights reserved. Peter Seebach / se...@plethora.net
C/Unix wizard, Pro-commerce radical, Spam fighter. Boycott Spamazon!
Consulting & Computers: http://www.plethora.net/
Stefaan A Eeckels
Graham Murray <news...@gmurray.org.uk> writes:
> Whichever official or body that decided that listening to
> an audio recording, viewing a video/DVD and running software are acts
> of copying (and therefore subject to the whim of the copyright owner)
> has a lot to answer for.
Is listening to an audio recording on a plain CD player, or
a vinyl record player for that matter, considered making a
copy? There's no memory, no storage, just plain rendering the
signals from the medium. Even though DVD players are technically
speaking "computers", being equiped with a processor, and some
ROM and RAM, it's damn hard to see where the act of playing a
DVD involves the same activity as executing a program (ie loading
it into another tier of the machine's memory structure).
If this is indeed considered copying, then the simple act of
searching a database and not returning a result is equivalent
to making a copy of the database, which, IMHO at least, is
patently absurd.
--
Stefaan
--
Ninety-Ninety Rule of Project Schedules:
The first ninety percent of the task takes ninety percent of
the time, and the last ten percent takes the other ninety percent.
Roger Schlafly
> > > The one thing we do know is that Congress did *not* intend to preclude
> > > independent third party servicing of computers, which was one effect of
> > > the change in wording from "rightful possessor" (and was the central
> > > issue of MAI Basic). When it came time to correct what was clearly a
> > > *mistake*, there *were* industry lobbyists involved who made sure the
> > > "correction" was very narrowly written.
> > How do you know what Congress intended?
> Because in the aftermath of MAI Basic, when there was a very real
> question about whther independent third-party servicing of computers,
> and even other non-computer devices (copiers, etc.) would be precluded,
> there was a lot of discussion about what Congress intended and several
> The almost immediate action to reverse the substance of MAI Basic with
> legislation confirms that these denials were not empty rhetoric.
Congressmen deny letting lobbyists alter laws all the time. Means
nothing. What a Congressman says his intent is often has almost
nothing to do with the actual intent. I find your argument unpersuasive.
Eg, consider the recent flap about Congress making music a work for
hire. When there was a big public stink over it, then Congress said
they never intended it and changed it back. But there cannot be any
doubt that the Congressmen who put in that provision were doing it
at the request of lobbyists for the purpose of making music a work
for hire.
So what do you expect these Congressmen to say? That they did it
at IBM's request in order to squeeze out 3rd party servicing?
These folks didn't get elected by saying dumb things like that.
Jeffrey Siegal
> One plausible explaination that I've heard is that there was a concern
> with people renting or borrowing a computer program (making them a
> "rightful possessor"), making an "archive copy," and then returning it
> to owner. Of course, when they return it they should also get rid of
> the "archive copy," but one doesn't feel like an infringer when one
> *doesn't* do something.
That makes sense. It wouldn't even be necessary to go through the
"archive copy" fiction, since one could just *install* the software on a
computer, as permitted by 117, and then return it.
But, as you say, since software rentals are no longer allowed, this
rationale no longer exists.
Jeffrey Siegal
> So what do you expect these Congressmen to say? That they did it
> at IBM's request in order to squeeze out 3rd party servicing?
The CONTU report was issued in 1978. The resulting amendment to the
Copyright Act was passed in 1980. There is no evidence that IBM *ever*
attempted to use the modified 117 wording to squeeze out 3rd party
servicing. The MAI case was not decided until 1993. It was not until
*after* the MAI case that including use rights in license agreements
became commonplace. (Even then, many observers consider it poorly
reasoned and weak law for several reasons including the fact that it did
not consider fair use analysis at all.)
I can certainly believe that a lobbyist requested the change as an
application of the general principle that he should try to broaden any
powers granted to his client and narrow any restrictions on that power.
What I don't believe, in the absence of any evidence whatsoever, is that
the lobbyist, assuming one existed, requested the change as part of some
calculated plan to create a use right for software.
Remember, the whole idea of applying copyright to computer programs was
new at the time. Subleties like the interpreation of 117 were
essentially unfathomable, making the eventual interpretation little more
than a historical accident.
Joseph Pietro Riolo
On Fri, 5 Jan 2001, Isaac wrote:
> As far as running the software is concerned the GPL explicitly says that
> its terms do not apply. So what would be the terms of the license you
> think is applicable? Since permission to run the binary is not
> covered by or granted by the license, what does give you the right to
> make the copy in RAM inherent in running a binary compiled from GPL'd code?
> I suggest the answer to be 17 U.S.C 117(1).
There are two different thoughts: 1) "I can do anything as long as it
is not forbidden by the license." 2) "I can do only things as allowed
by the license." If you are in thought #2, then, the right to run
software (or to run binary code) is granted by the copyright law.
But, if you are in thought #1, copyright law is immaterial.
> Your assertion that you cannot use fair use for GPL'd software is
> just plain wrong and probably not relevant to determining ownership.
> You don't need to own something to be able to use fair use. You
> can quote material out of a library book for example.
>
> About the only limitation I see on ownership of GPLd code is that
> the you may not be able to sell your copy of the software without
> complying with the license terms concerning distribution.
You may be right that you can own a software covered by GPL but
I fail to see what benefits you will gain from owning it. Methinks
that GPL eliminates much of the practical effects of ownership to
the point that it becomes meaningless. You can declare to the
world that you own a copy of a GPL software but what is the
difference between you and the next guy who owns the license
to use the same software (but does not own a copy of it)?
Joseph Pietro Riolo
<ri...@voicenet.com>
Lee Hollaar
>In article <87pui26...@toncho.dhh.gt.org>,
>John Hasler <jo...@dhh.gt.org> wrote:
>>That is not fair use. Fair use does not allow you to use bits of my
>>program in yours.
>
>It certainly might. A small clip, used because it's a fairly basic functional
>piece, could easily be covered under either fair use or merger doctrine.
>
>In other words, just because Dennis Ritchie was the first to write
> while (*s++ = *t++)
> ;
>doesn't mean I can't use it too.
There are many other reasons why you might use a snippet of code from a
copyrighted computer program in your own program besides fair use. The
example you give most likely would fall under a copyright doctrine called
"scenes a faire" which says that stock scenes in a book or movie are not
protectable by copyright. For example, the idea of overlapping windows
was found to be a stock idea for a graphics display using windows. See
_Apple v. Microsoft_, 32 USPQ2d 1086 (Ninth Circuit, 1994).
The leading cases on what might not be protectable in a computer program
are _Computer Associates v. Altai_, 23 USPQ 1241 (Second Circuit, 1992),
and _Gates v. Bando_, 18 USPQ2d 1503 (Tenth Circuit, 1993). These cases
proposed a test that includes the filtering of elements that are not
protectable by copyright and can therefore be copied freely. Elements are
filtered because:
o The element's expression was dictated by reasons of efficiency, such
as when it is the best way of performing a particular function.
o The element's expression was dictated by external factors, such as
using an existing file format or interoperating with another program.
o The element's expression is a conventional way of writing something
in the particular programming language or machine running the program.
o The element, at the particular level of abstraction, is an unprotectable
process and not protectable expression.
o The element is taken from the public domain, or is an unprotectable fact.
"Fair use" is just one of the reasons why something is not a copyright
infringement, and is usually the last one considered. The Copyright Act
provides a number of specific exceptions, such as Section 117's exceptions
for making copies necessary to use a computer program or make archive
copies of a computer program. Then there are doctrines that interpret
other sections of the Copyright Act, such as Section 102(B)'s dictate
that copyright does not protect function or ideas, such as scenes a
faire. Then comes fair use, which is a balancing test that allows the
judge to do justice when a specific exception does not apply.
Jeffrey Siegal
> You may be right that you can own a software covered by GPL but
> I fail to see what benefits you will gain from owning it.
The question is how to analyze "use" of a GPL program. The GPL is
somewhat contradictory on this, probably because it was written prior to
the MAI line of decisions which firmly established that copies made in
RAM are, in fact, copies which are either authorized, fair use, or
infringement.
The GPL says:
--->
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running
the Program is not restricted, and the output from the Program.
<---
These two sentences are somewhat contradictory. The first sentence
suggests that use is outside of the scope of the license, which means
that copyright law applies. Under copyright law, without permission (or
fair use), you do so have the right to use the software. The second
sentence suggests that use is permitted, and might be read as an implied
license to use. Or it may just mean that use is not restricted *under
the license*, but could still be restricted by copyright law.
If one does not read an implied license to use here, then the question
of use falls to copyright law, and under copyright law use is only
authorized for "owners." If one is not an owner, then you have a
situation where one can modify, copy and distribute GPL software, but
not use it. That's not as odd as it might sound, since it maps closely
to the rights held by a publisher or distributor of proprietary
software.
John Hasler
> A small clip, used because it's a fairly basic functional
> piece, could easily be covered under either fair use or merger doctrine.
> In other words, just because Dennis Ritchie was the first to write
> while (*s++ = *t++) ; doesn't mean I can't use it too.
You can use it but I don't think it is because of fair use. Copyright does
not protect against independent invention.
It may be possible to construct a narrow example in which fair use allows
you to use a small portion of my program in yours. However, my point is
that the common belief that fair use gives you an unlimited right to put
small bits of my work in yours is incorrect.
Isaac
>
>These two sentences are somewhat contradictory. The first sentence
>suggests that use is outside of the scope of the license, which means
>that copyright law applies. Under copyright law, without permission (or
>fair use), you do so have the right to use the software. The second
>sentence suggests that use is permitted, and might be read as an implied
>license to use. Or it may just mean that use is not restricted *under
>the license*, but could still be restricted by copyright law.
>
possibility requires you to read in a licensed use right
after the license has already said that running the software
is completely beyond its scope.
If we read that the running the program is simply not restricted under
the license, then the two seemingly contradictory sentences actually
say pretty much the same thing: No restrictions or additional permissions
other than those granted by copyright law with respect to running
the software. I'd think you'd also have to conclude that merely
running the program doesn't constitute the assent required to form
a contract.
I normally try to avoid the word "use" in this type of discussion
because it can include using the GPL covered source in your own
programs, and we don't want that meaning here.
>If one does not read an implied license to use here, then the question
>of use falls to copyright law, and under copyright law use is only
>authorized for "owners." If one is not an owner, then you have a
That's not quite true. Copyright law says that owners have the right
to run the software, but does not state that others cannot be be
granted those rights. Probably a nit that isn't relavent to the
discussion.
>situation where one can modify, copy and distribute GPL software, but
>not use it. That's not as odd as it might sound, since it maps closely
>to the rights held by a publisher or distributor of proprietary
>software.
I'd think it pretty odd. But I think the situation is more a creation
of copyright law than the GPL. In most situations if you have access
to GPL'd code its easy to become either an agent for the owner or
an owner and there is simply not much of a problem.
Isaac
Isaac
>
>It may be possible to construct a narrow example in which fair use allows
>you to use a small portion of my program in yours. However, my point is
>that the common belief that fair use gives you an unlimited right to put
>small bits of my work in yours is incorrect.
I'd agree, but I think the biggest reason is that the amount of the
work copied is only one of the four factors that must be considered.
It's hard to construct a real example simply because you can never
be sure that how a judge would weigh the four factors.
As an example:
I'd suggest that in a situation where a header file from your program
describes an API and contains no executable code, you might be able
to use a "fair use defense" if you compiled the entire file into your
program.
There might also be better defenses to try.
Isaac
Jeffrey Siegal
> >If one does not read an implied license to use here, then the question
> >of use falls to copyright law, and under copyright law use is only
> >authorized for "owners." If one is not an owner, then you have a
> That's not quite true. Copyright law says that owners have the right
> to run the software, but does not state that others cannot be be
> granted those rights. Probably a nit that isn't relavent to the
> discussion.
The issue is not whether the rights *can* be granted, but whether they
are granted. Nowhere in GPL grants that right. (Except the "implied
license" interpreation of the second sentence I posted.)
> >situation where one can modify, copy and distribute GPL software, but
> >not use it. That's not as odd as it might sound, since it maps closely
> >to the rights held by a publisher or distributor of proprietary
> >software.
>
> I'd think it pretty odd.
I didn't say it wasn't odd, just not quite as odd as it might sound. By
which, I meant that it actually has a sensible meaning in the context of
some licenses, though probably not this one.
Nevertheless, I think the most logical interpreations are:
1. Copies of GPLed software are owned, so the owner has the right to use
it under 117, or
2. GPL is defective, because it was not written with a proper understand
of (current) copyright law.
brl...@my-deja.com
> The issue is not whether the rights *can* be granted, but whether they
> are granted. Nowhere in GPL grants that right. (Except the "implied
> license" interpreation of the second sentence I posted.)
I think the intent was to say, "You have the right to run this software
because it's your right, not because this license says you can."
The FSF seems to subscribe to the old-fashioned idea that a license is a
contract, that a contract is something that parties have to agree to,
and that you only need to agree to a copyright license if you're going
to exercise a right reserved for the copyright owner.
These newfangled ideas seem lost on the FSF: A license is something a
copyright holder imposes on a consumer. Just because you buy something
doesn't mean you own it. You have no rights unless specifically
granted.
--
Bruce R. Lewis http://brl.sourceforge.net/
I rarely read mail sent to this address.
Jeffrey Siegal
> The FSF seems to subscribe to the old-fashioned idea that a license is a
> contract, that a contract is something that parties have to agree to,
> and that you only need to agree to a copyright license if you're going
> to exercise a right reserved for the copyright owner.
That's just it. Under current copyright law, if you do not "own" a copy,
then the right to use that copy is effectively reserved for the
copyright owner (because "use" involves making copies RAM, and making
copies is reserved for the copyright owner), and it would need to be
granted in a license, something GPL does not explicitly do.
Barry Margolin
Right. In the case of intangible, copyrightable material, the owner of the
copy isn't really significant, what's important is the owner of the
copyright. And the GPL doesn't transfer that.
--
Barry Margolin, bar...@genuity.net
Genuity, Burlington, MA
*** DON'T SEND TECHNICAL QUESTIONS DIRECTLY TO ME, post them to newsgroups.
Please DON'T copy followups to me -- I'll assume it wasn't posted to the group.
Jeffrey Siegal
> In the case of intangible, copyrightable material, the owner of the
> copy isn't really significant
I agree it makes little logical or economic difference.
However, it does make a legal difference, because only the "owner" of a
copy of a program has the benefit of Section 117's "it is not an
infringement" right to make additional copies (including in RAM)
necessary in order to use the program. I think it is a dumb law, but
its still the law.
Barry Margolin
Jeffrey Siegal <j...@quiotix.com> wrote:
>If one does not read an implied license to use here, then the question
>of use falls to copyright law, and under copyright law use is only
>authorized for "owners." If one is not an owner, then you have a
>situation where one can modify, copy and distribute GPL software, but
>not use it. That's not as odd as it might sound, since it maps closely
>to the rights held by a publisher or distributor of proprietary
>software.
Here's my thought: Could the authors of the copyright statute that refers
to "owner" have intended to mean the owner of the media, rather than the
copy? If the person who purchases a CD-ROM containing software isn't
inherently permitted to run the program, what has he actually purchased but
a useless piece of plastic?
However, I realize this interpretation runs into problems when software is
distributed electronically. Then there's no distribution media to own.
But I could understand the legislators not anticipating this when drafting
the law.
Barry Margolin
Do you mean that the vendors don't try to license them, or that the
licenses may not be enforceable? I think it's true that computer programs
virtually always come with a piece of paper that claims that the software
is being licensed.
Barry Margolin
Jeffrey Siegal <j...@quiotix.com> wrote:
>Barry Margolin wrote:
>> Copyright also applies to "performances" (as in plays and music), and I
>> suspect they decided that these acts were analogous enough to performing
>> that copyright could be invoked.
>
>Only *public* performance is relevant for copyright purposes. Private
>use is not.
>
>Copyright-based "use" restrictions derive from the MAI Basic decision
>which found that the "copying" of licensed computer programs in RAM that
>occurs when a computer executes are actual copies for copyright purposes
>a program and therefore require the permission of the copyright holder.
I understand how copyright is applied to running computer programs, but the
message I was responding to said activities like listening to DVDs have
also had copyright applied to them.
Roger Schlafly
> Joseph Pietro Riolo wrote:
> > You may be right that you can own a software covered by GPL but
> > I fail to see what benefits you will gain from owning it.
> The question is how to analyze "use" of a GPL program. The GPL is
> somewhat contradictory on this, probably because it was written prior to
> the MAI line of decisions which firmly established that copies made in
> RAM are, in fact, copies which are either authorized, fair use, or
> infringement.
>
> The GPL says:
> --->
> Activities other than copying, distribution and modification are not
> covered by this License; they are outside its scope. The act of running
> the Program is not restricted, and the output from the Program.
> <---
I think the only way to make sense out of this is to say that the
user of the Program *owns* his copy. An owner is allowed to use
what he owns. The "scope" statement is saying that GPL is relying
only on ordinary copyright law and not trying to limit use.
Roger Schlafly
In the past 25 years (and longer), we have seen Congress trying to
strengthen copyright laws at every opportunity. Broaden coverage,
lengthen terms, relax requirements, criminalize infringements, etc.
Apparently there are 100s of pro-copyright lobbyists in DC, and
hardly anyone arguing for copyright limitations. Maybe you are right
that the precise details of the MAI case were not anticipated, but
the IBMs wanted the stronger laws, and knew how to write aggressive
contracts to take advantage of the laws.
Some day UCITA-type laws will be in force, and some court will uphold
some unreasonable right claimed by a vendor, and there will be public
complaints. The legislators will claim that they never intended
e-books to come with a license agreement saying that the chapters
must be read in order, or something like that, but they are
deliberately giving the publishers extremely broad rights.
Jeffrey Siegal
> I understand how copyright is applied to running computer programs, but the
> message I was responding to said activities like listening to DVDs have
> also had copyright applied to them.
Not in private.
(Although don't DVDs have some code on them? How do the menus and
things work?)
Jeffrey Siegal
> Here's my thought: Could the authors of the copyright statute that refers
> to "owner" have intended to mean the owner of the media, rather than the
> copy?
I personally don't believe that the authors of the statute could have
understood at all the way the software business has evolved today, with
pervasive shrink-wrap end user license agreements, and all sorts of use
restrictions. When extending copyright to software, they probably
expected packaged software to be treated pretty much like books, movies,
etc.
BTW, it does say "owner of a copy."
Jeffrey Siegal
> Some day UCITA-type laws will be in force, and some court will uphold
> some unreasonable right claimed by a vendor, and there will be public
> complaints. The legislators will claim that they never intended
> e-books to come with a license agreement saying that the chapters
> must be read in order, or something like that, but they are
> deliberately giving the publishers extremely broad rights.
Fair analysis.
John Hasler
> You may be right that you can own a software covered by GPL but I fail to
> see what benefits you will gain from owning it.
You get the same benefits from owning a copy of a work covered by the GPL
as you do from owning any other object.
> You can declare to the world that you own a copy of a GPL software but
> what is the difference between you and the next guy who owns the license
> to use the same software (but does not own a copy of it)?
He has to acquire a copy before he can use it (and how did he come to be a
party to the license agreement without a copy of the licensed software?)