Re: bare license
If any of the rules and formalities of contracts you mention are required to be enforced under state law, that involves an element of state action. The GPL purports to overcome privity questions about third party distribution ad infinitum. This appears to create a new right against the world that is referred to in Procd v. Zeidenburg by the 7th Circuit. This seems to imply the GPL would be preempted by sec. 301 if any attempt is made to enforce the GPL under state action. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: bare license
Yes, the issues are exactly as you quite effectively summarize. In my post, I was not expressing my opinion on the merits of the contract/license debate; rather, I was noting the primary issues usually involved in that debate. Rod - Original Message - From: daniel wallace [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Friday, January 16, 2004 11:17 AM Subject: Re: bare license : If any of the rules and formalities of contracts you mention : are required to be enforced under state law, that involves an element : of state action. The GPL purports to overcome privity questions about : third party distribution ad infinitum. This appears to create a new : right against the world that is referred to in Procd v. Zeidenburg : by the 7th Circuit. This seems to imply the GPL would be preempted : by sec. 301 if any attempt is made to enforce the GPL under state action. : -- : 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
bare license
I think I understand why the Free Software Foundation insists that a license is not a contract. Their belief is grounded upon a mistaken interpretation of the case law on licensing patents, highlighted in a 1938 decision by the Supreme Court in General Talking Pictures Corp. v. Western Electric Co., Inc., 305 U.S. 124 The question of law requiring decision is whether the restriction in the license is to be given effect. That a restrictive license is legal seems clear. Mitchell v. Hawley, 16 Wall. 544. As was said in United States v. General Electric Co., 272 U.S. 476, 489 , 47 S.Ct. 192, 196, the patentee may grant a license 'upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent is entitled to secure.' The restriction here imposed is of that character. The practice of granting licenses for a restricted use is an old one, see Providence Rubber Company v. Goodyear, 9 Wall. 788, 799, 800; Gamewall Fire-Alarm Telegraph Co. v. Brooklyn, C.C., 14 F. 255. So far as appears, its legality has never been questioned. The parties stipulated that 'it is common practice where a patented invention is applicable to different uses, to grant written licenses to manufacture under United States Letters Patents restricted to one or more of the several fields of use permitting the exclusive or non-exclusive use of the invention by the licensee in one field and excluding in another field. The phrase above, the patentee may grant a license 'upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent is entitled to secure.' refers to the fact that any condition imposed in a bare license (no contractual terms) may restrict only the use of the exclusive rights (reward) of the patentee. The patentee alone is the only person who can restrict his exclusive rights. The phrase quoted above does not apply analogously to all exclusive rights in derivative copyrighted works. In patent law there is no such thing as a derivative patent defined as two distinct legal parties owning independent exclusive rights in the same idea. Sec. 103 (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work... The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. An original author has an exclusive right to commission a derivative work, but his exclusive rights encompass only his preexisting work in the commissioned work. The original author must bargain for the modifying author's exclusive rights. They exist independently of the original author's exclusive rights and hence do not fall under the scope of a bare license. They are not within the reward which the copyright holder by the grant of the copyright is entitled to secure of the original author. A summary of the above reasoning is a unilateral grant of permission for a derivate copyright work does not exist within the scope of the definition of a 'bare' license. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: bare license
I do not think the reason why FSF favors the argument you mentioned -- that an open source license is a license, not a contract -- is a secret. A copyright license typically sets forth the rights granted by the licensor. The issue that occasionally arises is whether a copyright license like the GNU GPL must meet the rules and formalities typically associated with contracts (e.g., mutual assent). Rod Rod Dixon Open Source Software Law Blog: http://opensource.cyberspaces.org - Original Message - From: dlw [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Thursday, January 15, 2004 9:02 AM Subject: bare license : I think I understand why the Free Software Foundation insists that : a license is not a contract. Their belief is grounded upon : a mistaken interpretation of the case law on licensing patents, : highlighted in a 1938 decision by the Supreme Court in : General Talking Pictures Corp. v. Western Electric Co., : Inc., 305 U.S. 124 : : : The question of law requiring decision is whether the restriction : in the license is to be given effect. That a restrictive license : is legal seems clear. Mitchell v. Hawley, 16 Wall. 544. As was said : in United States v. General Electric Co., 272 U.S. 476, 489 , 47 : S.Ct. 192, 196, the patentee may grant a license 'upon any : condition the performance of which is reasonably within the reward : which the patentee by the grant of the patent is entitled to secure.' : The restriction here imposed is of that character. The practice of : granting licenses for a restricted use is an old one, see Providence : Rubber Company v. Goodyear, 9 Wall. 788, 799, 800; Gamewall Fire-Alarm : Telegraph Co. v. Brooklyn, C.C., 14 F. 255. So far as appears, its : legality has never been questioned. The parties stipulated that 'it : is common practice where a patented invention is applicable to : different uses, to grant written licenses to manufacture under : United States Letters Patents restricted to one or more of the : several fields of use permitting the exclusive or non-exclusive use : of the invention by the licensee in one field and excluding in : another field. : : : The phrase above, the patentee may grant a license 'upon any : condition the performance of which is reasonably within the reward : which the patentee by the grant of the patent is entitled to : secure.' refers to the fact that any condition imposed in a bare : license (no contractual terms) may restrict only the use of the : exclusive rights (reward) of the patentee. The patentee : alone is the only person who can restrict his exclusive rights. : : The phrase quoted above does not apply analogously to all : exclusive rights in derivative copyrighted works. In patent law : there is no such thing as a derivative patent defined as two : distinct legal parties owning independent exclusive rights in : the same idea. : : Sec. 103 (b) The copyright in a compilation or derivative work extends : only to the material contributed by the author of such work... : The copyright in such work is independent of, and does not affect or : enlarge the scope, duration, ownership, or subsistence of, any : copyright protection in the preexisting material. : : An original author has an exclusive right to commission a derivative : work, but his exclusive rights encompass only his preexisting work : in the commissioned work. The original author must bargain for the : modifying author's exclusive rights. They exist independently of the : original author's exclusive rights and hence do not fall under the : scope of a bare license. They are not within the reward which the : copyright holder by the grant of the copyright is entitled to secure : of the original author. : : A summary of the above reasoning is a unilateral grant of permission : for a derivate copyright work does not exist within the scope of the : definition of a 'bare' license. : : -- : 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
