privity (was Re: Fwd: [linux-elitists] Wow, M$ is even more evil than I thought)

Rick Moen
Wed Apr 4 23:35:37 PDT 2001

begin Brooklyn Linux Solutions CEO quotation:

> Copyright Law is Copyright Law...
> Licensing has to obey both Copyright Law and General Contract Law.

Um, no.  Not at all.  A grant of rights under copyright law (a "transfer
of copyright") need _not_ involve any contract.


I write a piece of sheet music.  By the Copyright Act, I gain copyright
ownership inherently in that act of creation.  Later in the day, I create
100 photocopies and give you one.  You have now (by virtue of lawfully 
acquiring a copy) received certain implied rights to my work along with
its sheet music, by operation of the Copyright Act, but by default have
been _not_ given others (e.g., the right of public performance, which is
by default reserved to the copyright owner by action of the Copyright
Act).  In order for you to have received any of those additional rights,
I would have had to affirmatively grant them.  And, in this hypothetical
case, I have not.

All of the above has occurred without the two of us ever forming a
contract.  There has been no offer and acceptance supported by valuable
consideration involving a meeting of the minds in an arm's length
transaction.  Ergo, no contract.

Now, the above hypothetical situation was hand-crafted by me as a pure
example of 'transfer of copyright", per copyright law.  Some have argued
that the _language_ of particular open-source licences is reminiscent of
both copyright rights grants and of contract law.  And some have argued
that such licences are intended to in some way invoke contract law.
But, regardless of the merits of those claims, the are a separate matter
from the foregoing broader observation.

Cheers,                                      Right to keep and bear
Rick Moen                                  Haiku shall not be abridged                           Or denied.  So there.

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