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Re: RealNetworks' RTSP Proxy License

From: Joseph Reagle <reagle@w3.org>
Date: Fri, 7 Sep 2001 19:27:19 -0400
To: John Cowan <cowan@mercury.ccil.org>
Cc: Jeffry Smith <smith@mclinux.com>, license-discuss@opensource.org
Message-Id: <20010907232720.856A987623@policy.w3.org>
On Friday 07 September 2001 14:48, John Cowan wrote:
> Contracts are bilateral in the sense that they are founded on an offer
> and an acceptance.  Open source licenses generally tell you that you
> may do certain things (otherwise forbidden by statute) on certain
> conditions.  If you don't do the things, the license doesn't accept you.

To state my (no doubt flawed) understanding then:

In ProCD v. Zeidenberg [1] the court found that while Zeidenberg was *not* 
restricted by copyright law from posting the factual information from the 
CD on the Web, he had entered into an orthogonal contract when he obtained 
that information that restricted his use of this material to that end. So 
he had volunteered (given the upholding of the legitimacy of shrinkwrap) 
something he had (the ability to post factual information) via contract in 
order to access it in the first place:

  But whether a particular license is gen-
  erous or restrictive, a simple two-party contract is not
  "equivalent to any of the exclusive rights within the gen-
  eral scope of copyright" and therefore may be enforced. [1]

(There's a number of cases that differ with respect to where on the page, 
or how prominent the notice of contract is [2], including Specht v. 
Netscape, but they don't seem to mitigate the trend of "shrinwrap" 
authority.)

With the GPL, I have no right to make a copy regardless, and the license 
grants me that right given certain terms and conditions. So it's the 
inverse of the shrinkwrap scenario in that I am a "complete stranger" to 
the FSF (or whomever) and there is no actual contract...?

[1] http://www.law.emory.edu/7circuit/june96/96-1139.html
[2] http://www.phillipsnizer.com/int-click.htm


BTW: Interesting reading:

http://www.law.emory.edu/7circuit/june96/96-1139.html
  Whether there are legal differences between "contracts" 
  and "licenses" (which may matter under the copyright 
  doctrine of first sale) is a subject for another day. 
  See Microsoft Corp. v. Harmony Computers & Electronics, 
  Inc., 846 F. Supp. 208 (E.D. N.Y. 1994).

Microsoft Corp. v. Harmony Computers & Electronics,   Inc., 846 F. Supp. 
208 (E.D. N.Y. 1994).
http://web.lexis-nexis.com/universe/document?_m=85b81ab9e2a38e7ef867a887f89a1c7c&_docnum=1&wchp=dGLSlV-lSlzV&_md5=b446936dc16c1a2d90f78bb79c3b797f

...
Defendants argue, however, that because the Products they sold were 
purchased from Microsoft licensees, they are immune from liability for 
copyright infringement under the first sale doctrine. In response, 
plaintiff argues that the first sale doctrine does not apply to the present 
case because Microsoft never sells but rather only licenses its Products.
...
To the extent that defendants bought their  [**15]  Microsoft Products from 
authorized Microsoft licensees, they were subject to the same licensing 
restrictions under which those licensees operated.
...


Finally, plaintiff's claim that defendants exceeded the scope of its 
license  [**19]  agreements states a claim for copyright infringement 
rather than breach of contract. Not being parties to any license agreement 
with Microsoft, defendants are "complete strangers" to Microsoft, and their 
violations of the licensing restrictions must of necessity be seen as 
claims arising under the copyright laws rather than the law of contracts. 
See Marshall v. New Kids on the Block Partnership, 780 F. Supp. 1005, 1008 
(S.D.N.Y. 1991). Even if defendants were seen as parties to Microsoft's 
license agreements, their undisputed distribution of Products outside the 
scope of the license agreements puts them in the same position as an 
infringer having no contractual relationship with the copyright holder and 
again makes them "strangers" to Microsoft. Id. at 1009; Kanakos v. MX 
Trading Corp., 1981 WL 1377, *2 (S.D.N.Y. Sept. 16, 1981). Accordingly, 
plaintiff's allegation that defendants exceeded the scope of the license 
agreement states a claim for copyright infringement. 

...
Received on Friday, 7 September 2001 19:27:25 GMT

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