On Sat, 06 Sep 2003, Rick Moen wrote:
> Assuming we're talking about USA jurisdictions: 17 USC 106 et seq.
> enumerates rights reserved to copyright owners by default. Others
> are conveyed automatically to any lawful recipient of a covered work
> -- the default licence implicit in copyright law.
17 USC 106 (3) lists four ways for a copy to be distributed.
106. Exclusive rights in copyrighted works:
Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of
the following:
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by
rental, lease, or lending;
Rental and lending are pretty much out of scope for software, licenses
preclude sale, so what we're pretty much only discussing lease of the
software, subject to the terms of the license.
> I've been seeing them for many years, ad nauseum. Whether valid
> consideration exists sounds open to question.
It's definetly an open question, and it will be until a OS license is
tested in court. I can almost guarantee that will be one of the legal
tests of the license made. Myself and everyone else can only give you
the counter arguments that will be made in such a case. I personally
think that it won't be a very big hurdle to overcome, but the
decisions of courts are not the easiest things to predict.
> You might be able to build a case that those downloading the tarball
> directly from the author's site undergo the required offer &
> acceptance, but further uploads and downloads entail no such
> relationship between recipient and licensor.
In such a case, the licensor has no more rights than granted to him by
copyright law. If there is no privity, there can be no contract,
therefore the rights granted are granted by statute. [I'd actually
argue that the no rights are granted by title 17, because without
privity, the software has not been lent, rented, leased or sold, and
any distribution infringes on the rights of the copyright holder.]
Perhaps I'm missing some key point, but I don't see how we can use
such software save under a valid license or leasing agreement persuant
to section 106 (3) and following the legal forms of a lease.
Don Armstrong
--
She was alot like starbucks.
IE, generic and expensive.
-- hugh macleod http://www.gapingvoid.com/batch3.htm
http://www.donarmstrong.com
http://www.anylevel.com
http://rzlab.ucr.edu
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