Your are not likely to find a legal meaning (in the copyright law sense) of "use" restrictions, but it might be helpful to frame the issue in a two-step analysis: [1] Use restrictions that involve exclusive copyright interests, and [2] use restrictions that exceed or are outside of the scope of exclusive copyright interests. The proposal concerns step 2. (An example of step 1 might be a restriction on public distribution of copies). I think the language in the proposal would benefit from refinement; notably, although step 2 restrictions could encompass a wide-range of matters, I doubt I would ever have included indicia of mutual assent (i.e., clickwrap matters). I think the aerlier suggestion that an explanatory note follow the proposed clause is a good idea.
Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 > From: "Dr. David Alan Gilbert" <[EMAIL PROTECTED]> > > Can you explain to me (and the list) what the definition of a > > 'use restriction' is? > > IANAL, of course. > > For software, "use" is execution of the software. > > Copyright law doesn't speak much of software at all, so we can't rely > on that for a definition and must look at court cases for precedents. > > Creation of derived works is a separate right from use under > copyright law. It can be restricted separately from use, and vice > versa. The act of modifying software creates a derived work > that is partially your copyright, and partially that of the original > contributor. > > Public performance is a separate right as well, but in the U.S. it is > defined to apply to plays and audiovisual media, and _not_ to software. > > There is some contention regarding whether linking creates a derived > work, and exactly one court case on the topic that isn't definitive. > Dynamic linking, server-izing, and cross-process procedure call schemes > like CORBA make this more complicated. With CORBA, you can "use" a > library without ever linking to it, and it would be difficult to proves > in court that a derived work would be created. In many of these schemes, > the derived work, if one exists, is created on the user's system at > run-time and it's going to be difficult to prove in court that it's > _distributed_ as a derived work. All of this makes it questionable that > the GPL's linking provisions with regard to source-code disclosure would > be enforced in court. > > In an effort to create a more clearly enforcible GPL-like license, Larry > has relied on _use_ restriction rather than restriction of the creation of > derived works in his new license. > > Thanks > > Bruce > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3