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Re: license v license v /license/

From: owl
Subject: Re: license v license v /license/
Date: Tue, 11 Jan 2011 20:36:01 +0000 (UTC)
User-agent: tin/1.9.2-20070201 ("Dalaruan") (UNIX) (Linux/2.6.24-28-generic (i686))

In comp.os.linux.advocacy Alexander Terekhov <> wrote:
> Nice paper: 

> (Why License Agreements Do Not Control Copy Ownership: First Sales and
> Essential Copies) 

> I especially like this part: 

> "When "license" is used as a noun in the copyright context, it means
> something like, "a grant by the holder of a copyright to another of any
> of the rights embodied in the copyright short of an assignment of all
> rights" as in "The agreement contained a license to reproduce 20 copies
> of the photograph." 

> When "license" is used as a verb it typically means "to give permission
> or consent" as in "The author licensed her publication right to the
> nation's largest distributor." 

> These uses of the word relate only to the intangible copyright. 

> The word "license" is also, unfortunately, used in conjunction with
> tangible things. First, as a noun it is often used synonymously with the
> terms "agreement" or "contract" when that underlying agreement contains
> grants of copyright permissions, as in "Did she sign the license?" This
> usage seems to lead to confusion less often and I will not address it
> further here. 

> However, particularly in the software context, the word "license" is
> used as a verb in yet another way that I wish to focus on. Software
> distributors often say, "We only license our software. We do not sell
> it." This is a difficult sentence to parse because of the layers of
> ambiguity involved, but particularly from reading the cases, one comes
> to understand that the intended definition is not just that described
> above of "to give permission or consent" with respect to some right of
> copyright, but instead is used in a way that means something more like: 

> to transfer to another possession of a tangible object in which a
> copyrighted work is embodied, for a specified period of time or
> perpetually, without transferring title to the tangible object, and
> typically providing at least some copyright permission. 

> It would be useful to have a different term to indicate this unique use
> of "license." Something like "no title to the copy license" would
> perhaps convey the intended meaning, but would be exceedingly
> cumbersome. For purposes of clarity in this section, when I talk about
> this sense of "license" I will place the word in italics, like so:
> /license/.140 

> Usage of the word /license/ has caused rampant confusion. Before
> considering some examples of this confusion, it is worthwhile to provide
> some historical context on the development of this usage of the term
> /license/. The Third Circuit explained, in an opinion from 1991, that: 

> When these form licenses were first developed for software, it was, in
> large part, to avoid the federal copyright law first sale doctrine...
> [Court describes software rental companies.] The first sale doctrine,
> though, stood as a substantial barrier to successful suit against these
> software rental companies, even under a theory of contributory
> infringement. By characterizing the original transaction between the
> software producer and the software rental company as a license, rather
> than a sale, and by making the license personal and non-transferable,
> software producers hoped to avoid the reach of the first sale doctrine
> and to establish a basis in state contract law for suing the software
> rental companies directly. Questions remained, however, as to whether
> the use of state contract law to avoid the first sale doctrine would be
> preempted either by the federal copyright statute (statutory preemption)
> or by the exclusive constitutional grant of authority over copyright
> issues to the federal government (constitutional preemption).
> (citations). Congress recognized the problem, and, in 1990, amended the
> first sale doctrine as it applies to computer programs and
> phonorecords... This amendment renders the need to characterize the
> original transaction as a license largely anachronistic.141 

> But the usage, even if anachronistic, has persisted, in part because
> software distributors wanted more than to defeat the first sale doctrine
> in the case of software rental companies. Even after Congress responded
> to that concern, software distributors were unwilling to give up the
> /licensing/ fiction because it appeared to provide a means to other
> desirable ends such as price discrimination, controlling ancillary
> markets, and preventing competition in related goods.142 

> The merits of permitting copyright owners these additional benefits are
> not my focus. I am concerned with how the ambiguous use of the word
> "license" has created a land mine for courts who end up speaking
> imprecisely or in the worst case scenarios, reaching erroneous
> conclusions. 

> The Microsoft Corp. v. Software Wholesale Club, Inc. opinion provides
> one example. The court wrote, "However, a party that licenses its
> products rather than selling them may avoid the application of the
> first-sale doctrine. See, e.g., Harmony Computers & Elecs., (the fact
> that Microsoft licenses rather than sells its products likely precludes
> application of the first-sale doctrine); Novell, Inc., 2000 U.S. Dist.
> LEXIS 9975, at *7-18 (the first-sale defense applied, but only because
> Novell sold, rather than licensed, its software product)."143 

> What does the phrase "licenses its products" mean here? Both "license"
> and "products" could have two meanings.144 If it just means that a
> license, as in a grant of permission, is provided with respect to some
> right of copyright, then it has fallen into the error of ignoring 17
> U.S.C. ยง 202, by failing to recognize the possibility of ownership of a
> copy independent from ownership of the copyright, to be discussed more
> fully next. But, if it instead means /license/, that is, a transfer of
> possession without a transfer of title to the copy, then one has
> presumed the answer to the question being asked, that is, in trying to
> determine whether someone is an owner of a copy, it is not much use to
> say that those who are not owners of a copy do not have the rights of
> owners of a copy. We knew this at the outset. What was wanted was a
> feature of the transaction that would distinguish the owners from the
> non-owners, other than the label applied by the copyright holder.145" 

> regards,
> alexander.

Q. What would happen if doctors and lawyers worked for minimum wage?
A. Doctors would still get laid.

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