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Re: Some licensing questions regarding celestia



On Mon, 08 Sep 2003, Rick Moen wrote:
> Your implicit assumption that methods of distribution of a
> copyrighted work must be enumerated specifically in the Copyright Act
> in order to be lawful is blatantly absurd, and I do not accept it. 

The issue is not whether they are lawfull or not, but merely that
those are the only forms of distribution available exclusively to the
copyright holder.

> No, it does not follow the forms of contract law. 

See MA Mortenson v. Timberline;[1]
Pro CD v. Zeidenburg;

    In ProCD, which involved a retail purchase of software, the
    Seventh Circuit held software shrinkwrap license agreements are a
    valid form of contracting under Wisconsin's version of U.C.C.
    section 2-204, and such agreements are enforceable unless
    objectionable under general contract law such as the law of
    unconscionability.  ProCD, 86 F.3d at 1449-52.

(The above is a quote from MA Mortenson about ProCD)
  
> There is (typically) no acceptance conveyed to the licensor, for one
> thing.

Then as has been shown in various shrinkwrap cases, the entire license
is null and void. [See Spect et al v. Netscape]

>> Since nothing in Copyright Law (or any other segment of law that I'm
>> aware of) restricts the rights you can give away, Contract Law allows
>> you to create a legally binding agreement to give away those rights
>> subject to conditions.
> 
> Although _that_ statement may also be true, it is irrelevant to the
> preceding discussion: There need not _be_ formation of a contract for
> copyright law to apply, 

Copyright law applies regardless.

> and for copyright-based licences such as GPLv2 and the BSD licence to
> apply though that law.

The validilty and application of the license is subject to applicable
contract law. See the cases cited above.


Don Armstrong

1: http://caselaw.findlaw.com/scripts/getcase.pl?court=wa&vol=677964maj&invol=1
-- 
Guns Don't Kill People.
*I* Kill People.

http://www.donarmstrong.com
http://www.anylevel.com
http://rzlab.ucr.edu

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