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

Brooklyn Linux Solutions CEO
Thu Apr 5 07:32:50 PDT 2001

On 2001.04.05 02:35:37 -0400 Rick Moen wrote:
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.>>

Well of course you can conduct business without a written contract...and
then you
have an implied contracts, consumer rights and property rights.

<<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>>

But thios is not what we were talking about.  And this is not an example of
the potential legal issue.  Someone does not go into a contract with the
mear act of a purchase, but this condition is still covered under contract
law.  The real issue is
can one create a contract which is not negotiated between two parties
(problem A), and which limits fair use (Problem B).

Let's look at problem A first.  UCITA wishes to create a condition which
we've very much historically have tried to avoid because of the obviously
dire consequences to the public.  Contracts have to be fairly negotiated
between two equal parties.  Without this condition, society is hostage to
ALL kinds of unfair restriction...which is actually the case with many
click throuugh licensing agreements.  Black workers were essentially
enslaved for nearly 100 years after the Civil War because of practices like
this in sugar plantations in Louisiana.   Essentially, the software
industry, MS and Adobe particularly, wants easy to entrap the use
licensing.  I'm at the point in fustration with this increasing trend, that
I propose the opposite.  No contract should be legally binding without
being noterized and with 2 witnesses.  That would put an end to most of the
repressive BS going down on the public.

The second Problem is the question of if "Fair Use" can be constricted by
ANY CONTRACT.  Again, I would argue - NO WAY.  You can't sell yourself into
slavery, and you can't sell your civil rights away.


<<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.>>

Yes and no.  It is true we have no contract, just like some people die
without a will.  Then default rights and rules kick in.  Fair Use is not a
default implied copyright license (which is what the Movie Industry is
trying to make people bneleive).  It's a civil right.  Implied contract and
business law is completely different issue.

<<Now, the above hypothetical situation was hand-crafted by me as a pure
example of 'transfer of copyright", per copyright law. >>

Not really, as I understand Copyright.  Copyright is a franchise monopoly
granted by the governement to an individual.  Getting a copy of something
is not getting the copyright.  It DOES give you property rights to the
copy.  Those rights are legally limited by the Copyright owners monopoly.

<< 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.>>

It's a Contract protected by Copyright Law, like all other licenses of
copyrighted material.  It says, in addition to Fair Use, you get these
extended rights which are normally restricted to my monopoly.  

That's actually a good idea.  We should have a law mandating all copyright
licenses to start with the expression,

By agreeing to this license, the signees understand that the following
rights have been extended to the buyer of this material from the copyright
holder, in addition to the guaranteed rights under the fair use follows...


With Passover coming - we will have many cheers indeed this weekend!

Brooklyn Linux Solutions


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