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

Brooklyn Linux Solutions CEO ruben@mrbrklyn.com
Thu Apr 5 11:43:32 PDT 2001


On 2001.04.05 13:16:47 -0400 Rick Moen wrote:
begin  Brooklyn Linux Solutions CEO quotation:

> But this is not what we were talking about. 

<< 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.>>

100%


<<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.>>

Correct..just the implicit agreement under Business Law and Copyright
Law...which -BTW is part of the contract law.



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

If I understand the copyright law correctly...there is no transfer of the
copyright.  You OWN the copyright, they have an implicit license to use the
copyrighted work as part of their legally aquiring a copy of the work.


<<  Some have argued
that the _language_ of particular open-source licences is reminiscent of
both copyright rights grants and of contract law. >>


They're not mutually exclussive.....in fact, any copyright license which is
not implicit has to also be a legal contract.



<< 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.>>

Um no...I think...
Contract Law also includes circumstances where there is no Contract.


> 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
law.>>

Maybe.  But it does involve contract LAW.  BTW - in the example you
crafted, there is no license.  You DON'T need a license to use or aquire
copyrighted work legally ;)

AND THAT is a major point! ;)


<<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.

>>

OK - Where is that established.  I've never seen that yet, and it would be
a REALLY poor use of terminology...almost as bad as "Intellectual
Property".


BTW - I knew there had to be an explaination for that usage by you.

<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.>

We are in complete agreement.


> 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).>

Meanwhile - Brooklyn isn't so bad... ;)


-- 
Cheers,                                      Right to keep and bear
Rick Moen                                  Haiku shall not be abridged
rick@linuxmafia.com                           Or denied.  So there.
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