Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/10/2015 12:55 PM, co...@ccil.org wrote: Fortunately, books are also sold -- at least so far, though nothing stops book publishers from putting the same sort of notice into each copy of a book and gutting the used-book market. A Supreme Court case does: The precise question, therefore, in this case is, does the sole right to vend (named in § 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (U.S. 1908). So at least they'd have to shrink-wrap it --- Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Hello, One may wonder what is the big deal with this single phrase in LGPL. It basically states something fairly similar with EU software directive: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32009L0024 Please see art. 6, Decompilation: The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of points (a) and (b) of Article 4(1) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, [...] This decompilation provision is very narrow, but it says in plain English that there are cases when the user of computer software has the right to copy the software privately and even decompile it. I compare with LGPL 2.1: it says that users of the other program have the right to reproduce/decompile the other program in order to achieve interoperability with the LGPLed library, including with an user-modified version of that library. you may also combine or link a work that uses the Library with the Library to produce a work containing portions of the Library, and distribute that work under terms of your choice, provided that the terms permit modification of the work for the customer's own use and reverse engineering for debugging such modifications. This is a similar scope with Article 6 (though not identical; nor can it, since it talks about works based on the work while EU directive about any interoperability). The recipient has a right to take actions that fall under reverse engineering (copying, testing, decompiling the whole thing) for interoperability. Integration between the library and the other work is an example of precisely interoperability between the two. LGPL2.1 provision is very narrow too, for customer's own use and for debugging why the modified library doesn't work as expected. Not more. In other words, LGPL2.1 *shouldn't need* to say its little phrase today, or apparently surprise corporate lawyers/speakers at all, because this is supposed to be law already in EU: the legal protection of software contains users' right to decompile under specific narrow circumstances, no matter what the proprietary license agreement claims. Since 1991 at least. (The directive precursor of the current one was from 1991; for comparison, LGPL-2.0 seems to be from 1991 as well [1], and LGPL-2.1 from 1999.) Is there some law in Germany, which is contrary to this right? As long as we do not have a legal decision Commentators say that SAS v. World Programming is a pertinent legal decision, for example: http://www.bloomberg.com/news/articles/2012-05-02/copyright-can-t-block-software-reverse-engineering-court (These are EU examples. In US, things are framed a bit differently, i.e. the right to reverse engineering with the purpose to discover uncopyrightable elements necessary for interoperability with other software is under fair use, with circuit-dependent and case-dependent interpretation.) [1] https://www.gnu.org/licenses/old-licenses/lgpl-2.0.html -- Oracle corollary to Hanlon's razor: Never attribute to stupidity what can be adequately explained by malice. (~ adapted from Adam Borowski) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
[side issue below] John Cowan wrote: In licensed software, however, there *is* privity of contract. I'm not sure that's true for sublicensed software. That's why I objected to the sublicensing provision in a recently-approved license. Most licenses nowadays fortunately are directly from the licensor to the licensee. Sublicensing not involved. /Larry -Original Message- From: co...@ccil.org [mailto:co...@ccil.org] Sent: Wednesday, March 11, 2015 10:58 AM To: license-discuss@opensource.org Subject: Re: [License-discuss] Reverse Engineering and Open Source Licenses Pamela Chestek quotavit: In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract. In licensed software, however, there *is* privity of contract. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (U.S. 1908). I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. So at least they'd have to shrink-wrap it --- Naah. If anything, shrink-wrapping makes it harder, not easier, to show the licensee's consent to the contract. If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org The Penguin shall hunt and devour all that is crufty, gnarly and bogacious; all code which wriggles like spaghetti, or is infested with blighting creatures, or is bound by grave and perilous Licences shall it capture. And in capturing shall it replicate, and in replicating shall it document, and in documentation shall it bring freedom, serenity and most cool froodiness to the earth and all who code therein. --Gospel of Tux ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Pamela Chestek asked: Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? DANGER: Poison inside! Otherwise, thanks to Pamela for her legal research on the first sale doctrine as applied to copyrighted articles! Lawrence Rosen If this were legal advice it would have been accompanied by a bill. -Original Message- From: Pamela Chestek [mailto:pam...@chesteklegal.com] Sent: Wednesday, March 11, 2015 2:34 PM To: license-discuss@opensource.org Subject: Re: [License-discuss] Reverse Engineering and Open Source Licenses On 3/11/2015 1:58 PM, co...@ccil.org wrote: I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng: A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly against Trade and Traffi[c], and bargaining and contracting. ... The first sale doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the first sale doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat. 1084 The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the first sale doctrine) or in §109(a)s predecessor provision, which Congress enacted a year later. See supra, [1364] at ___, 185 L. Ed. 2d, at 405. Kirtsaeng v. John Wiley Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013) If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/11/2015 1:58 PM, co...@ccil.org wrote: I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng: A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly “against Trade and Traffi[c], and bargaining and contracting.” ... The “first sale” doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the “first sale” doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat. 1084 The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the “first sale” doctrine) or in §109(a)s predecessor provision, which Congress enacted a year later. See supra, [1364] at ___, 185 L. Ed. 2d, at 405. Kirtsaeng v. John Wiley Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013) If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Pamela Chestek quotavit: In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract. In licensed software, however, there *is* privity of contract. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (U.S. 1908). I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. So at least they'd have to shrink-wrap it --- Naah. If anything, shrink-wrapping makes it harder, not easier, to show the licensee's consent to the contract. If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org The Penguin shall hunt and devour all that is crufty, gnarly and bogacious; all code which wriggles like spaghetti, or is infested with blighting creatures, or is bound by grave and perilous Licences shall it capture. And in capturing shall it replicate, and in replicating shall it document, and in documentation shall it bring freedom, serenity and most cool froodiness to the earth and all who code therein. --Gospel of Tux ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Pamela Chestek scripsit: Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Isn't boxed software a tangible article? If the box doesn't count, the CD/DVD surely does. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org How comes city and country to be filled with drones and rogues, our highways with hackers, and all places with sloth and wickedness? --W. Blith, Eng. Improver Improved, 1652 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
But that's the acceptance by breaking the wrapper, not just by virtue of being printed. And the printed for promotional use on cds was held not an enforceable license. Pam Sent from my T-Mobile 4G LTE device -- Original message-- From: John Cowan Date: Wed, Mar 11, 2015 8:53 PM To: license-discuss@opensource.org; Subject:Re: [License-discuss] Reverse Engineering and Open Source Licenses Pamela Chestek scripsit: Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Isn't boxed software a tangible article? If the box doesn't count, the CD/DVD surely does. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org How comes city and country to be filled with drones and rogues, our highways with hackers, and all places with sloth and wickedness? --W. Blith, Eng. Improver Improved, 1652 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Smith, McCoy scripsit: The conditional sale cases under the patent law (of which there are but a few, the Mallinckrodt case being the most notable: http://en.wikipedia.org/wiki/Mallinckrodt,_Inc._v._Medipart,_Inc. ) might be an example, although I don't recall if there was any sort of true contract analysis in that case. I don't think there was. It was just another example of massive overreaching by the Patent Holder's^W^W Federal Circuit. There is some debate as to whether the conditional sale cases are good law anymore post the US Supreme Court's Quanta decision: http://en.wikipedia.org/wiki/Quanta_Computer,_Inc._v._LG_Electronics,_Inc. I hope not, but the Supremes seem to have left the question vague. In particular, none of these cases have to do with contract restrictions. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org I marvel at the creature: so secret and so sly as he is, to come sporting in the pool before our very window. Does he think that Men sleep without watch all night?--Faramir ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/11/2015 5:48 PM, Lawrence Rosen wrote: DANGER: Poison inside! I would go with assumption of risk on that one. :-) Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 11/03/2015 01:07, John Cowan wrote: No, of course not. But when I buy the book, the first-sale right is exhausted; when I buy proprietary software, it is not, and I have no right to resell. The difference is that the book is purchased whereas the proprietary software is only licensed. Just to add here that in the European Union, following the Usedsoft v Oracle decision (case C-128/11), the right of the developer/copyright owner to control distribution is indeed exhausted after first sale and proprietary licensed software *can* be resold despite any clause in the licence to the contrary. Of course, this requires that the licence is not for a fixed time period and that any DRM controls would not be interferred with in the process, but hey it's a start! -- Maximilian ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? The conditional sale cases under the patent law (of which there are but a few, the Mallinckrodt case being the most notable: http://en.wikipedia.org/wiki/Mallinckrodt,_Inc._v._Medipart,_Inc. ) might be an example, although I don't recall if there was any sort of true contract analysis in that case. There is some debate as to whether the conditional sale cases are good law anymore post the US Supreme Court's Quanta decision: http://en.wikipedia.org/wiki/Quanta_Computer,_Inc._v._LG_Electronics,_Inc. I'll let any law professors on the mailing list further elucidate the latter question. -Original Message- From: license-discuss-boun...@opensource.org [mailto:license-discuss-boun...@opensource.org] On Behalf Of Pamela Chestek Sent: Wednesday, March 11, 2015 2:34 PM To: license-discuss@opensource.org Subject: Re: [License-discuss] Reverse Engineering and Open Source Licenses On 3/11/2015 1:58 PM, co...@ccil.org wrote: I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng: A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly against Trade and Traffi[c], and bargaining and contracting. ... The first sale doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the first sale doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat. 1084 The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the first sale doctrine) or in §109(a)s predecessor provision, which Congress enacted a year later. See supra, [1364] at ___, 185 L. Ed. 2d, at 405. Kirtsaeng v. John Wiley Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013) If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
