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

Rick Moen
Thu Apr 5 10:16:47 PDT 2001

begin  Brooklyn Linux Solutions CEO quotation:

> But this is not what we were talking about. 

Isn't it?  

OK, I write a computer program.  By the Copyright Act, I gain copyright
onwership inherently in that actof creation.  Later in the day, I put
the source code up on my ftp site, with no explicit licence, just my
copyright notice ("Copyright (C) Rick Moen, 2001").  You download a
copy.  You have now (by virtue of lawfully acquiring a copy) received
certain implied rights to my work along with the source code, by
operation of the Copyright Act, but by default have been _not_ given
others (e.g., the right of redistribution of the original or of
derivative works, which are 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.

> And this is not an example of the potential legal issue.

Both hypotheticals are examples of creative works being distributed
under legally enforceable terms that have nothing whatsoever to do with
contract law.

> Someone does not go into a contract with the mear act of a purchase,
> but this condition is still covered under contract law. 

Neither of these hypotheticals is a purchase.  Purchases do indeed
create contracts:  However, licensing per se _need not_ involve contract

Thus my point.

> 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. 

Please read more carefully:  You are carelessly misreading the term
"transfer of copyright", despite my earlier explanation (two posts ago)
of that as a technical legal term that can unfortunately prove confusing
if you are not paying attention.

Please do so _now_.  Here is a re-post of my earlier explanation:  

    A "transfer of copyright" is an unfortunately misleading but
    standard legal term that denotes a granting of permissions by 
    the owner to materials governed by the Copyright Act.

The term does _not_ denote "getting the copyright".  By the way,
reassignment of copyright ownership must be done in writing, per the
Copyright Act.  Other aspects of copyright law (such as a granting of 
permission under copyright law -- a "transfer of copyright" -- need not
be evidenced in writing.

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

May you and your family have a good Passover, this year (and next year,
in Jerusalem, so to speak).

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

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