John,
You did quite well. I would like to clarify just a couple of points.
> David Johnson wrote:
>
> > If copyright law does not give you rights A, B and C, then you do not
> > have them unless the copyright holder gives them to you.
>
> Nope. It goes like this:
>
> 1) You have bought or acquired for free a certain thing.
Perhaps some of the confusion concerns the mistaken notion that ownership of the
object of copyright ( a book, CD, or software program) is the same as ownership of
copyright in the object. Copyright is "owned" by the author. That's it. Period. You
cannot acquire an author's copyright by buying his works. This is true regardless of
whether a license is used to sell the work, although the contents of the license may
affect the author's copyright.
>
> 2) That gives you the ordinary rights of an owner (lots of rights),
And, those rights, whatever they are, have nothing to do with copyright. Hence, using
the term "withheld" in step 3 is a little misleading in the sense that the Copyright
Act does not withhold rights from users as much as it establishes rights for the
copyright holder.
>
> 3) ... except for the rights withheld by the Copyright Act;
> you can't copy, distribute, publicly perform or display,
> or make derivative works,
>
> 4) ... unless the copyright holder gives you some or all
> of those rights, conditionally or unconditionally.
>
> > And I don't care what the judges
> > say, tearing off some plastic shrink wrap doesn't count as an agreement.
>
> Up till now, the judges mostly agreed with you. UCITA is designed to
> change that.
Well, UCITA is designed to set up uniform rules for transacting in information. The
common law of contracts fairly consistently has upheld contracts written on paper
napkins or simply uttered between two people. I do not recall reading one court
opinion that did not uphold a shrink wrap contract because the buyer had not assented
to the terms of the agreement when he tore off the plastic. The shrink wrap issue you
may thinking of has to do with whether the shrink wrap can modify a prior written
agreement. Some unscrupulous software developers attempt to sneak in changes to
written agreements on the shrink wrap. This is a no, no, and UCITA says so.
>
> There is no single overt act that counts as agreeing: agreement
> is partly judged
> by what ordinary people do in ordinary circumstances. Sometimes
> it requires
> a signature, sometimes not. For example, when you drop you car off at the
> garage for repairs, you have agreed to pay for them; if you
> don't, the mechanic
> can keep your car until you do (called a "mechanic's lien").
>
> > You don't buy paperback books with licenses on their inside covers that
> > say "you agree not to lend this to your friend",
>
> There could be no such license under copyright law, of course,
> since lending
> out your copy (or selling it) is an ordinary part of the dominion
> of the owner of
> the book, not the copyright owner.
In American Copyright law, the First Sale doctrine was established to cover the
example you are referring to. Essentially, the first sale doctrine extinguishes the
right of the copyright holder to forbid the re-sale or lending of things like books
and videotapes. (BlockBuster could not exist without the frist sale doctrine).
Interestingly enough, Congress exempted computer programs from the first sale
doctrine. Hence, we see how books and software are treated in dramatically different
ways. I doubt that mass-market EULAs would exist at all if the first sale doctrine
applied to software. It is quite possible that UCITA would permit e-books to be
treated like software! I think that would be tragic in the sense that publishers are
very likely to exceed the necessary scope of their own protected interest. Would any
lend there Stephen King e-book before it becomes illegal to do so?
Rod Dixon, J.D., LL.M.
www.cyberspaces.org
[EMAIL PROTECTED]
