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From Jeffrey Thompson <jt...@us.ibm.com>
Subject Re: New versions of CC licenses
Date Fri, 06 Dec 2013 19:31:09 GMT

Jim Jagielski <jim@jaguNET.com> wrote on 12/06/2013 06:33:05 AM:
>
> On Dec 5, 2013, at 4:30 PM, Richard Fontana <rfontana@redhat.com> wrote:
> >
> > You keep asserting this but I do not think you are correct. The
> > general rule in the US, though it is a state law issue, is that you
> > need explicit permission to pass on a proper subset of rights received
> > as to the original material.

. . .

> +1
>

The fact that Richard doesn't think I'm correct, notwithstanding, his
statement of the law is incorrect.  You do not need explicit permission to
pass on a subset of rights.  The reason why derives from the basic
structure of copyright itself.  Unfortunately, this will take a couple of
minutes.  I hope no one is too bored.

Copyright is a government granted monopoly on the right to perform certain
actions with respect to creative works.  US Copyright law provides six
basic exclusive rights:  reproduction, modification, distribution, public
performance, public display, and digital audio transmission (ignoring moral
rights which are somewhat supported in US Law and the quasi-right of access
created by the DMCA).

If you're not performing one of those actions or even if you are, but you
fall within one of the statutory exceptions (such as fair use, library
rights, etc.), you do not need permission from the copyright owner to do
what you are doing.  So, reading a book?  Great.  No copyright right
needed.  "Reading" isn't a granted exclusive right.

The structure of the legal regime is that you're allowed to do anything you
want, unless you infringe one of the exclusive rights granted by Title 17
of the US Code.

If you want to take advantage of one of the exclusive rights, you need
permission.  If you're granted permission, the scope of that permission
controls what you are allowed or not allowed to do.  If I have permission
to make 1 copy of a book, that's what I get to do -- make 1 copy of the
book.  If the permission doesn't say anything about how I have to make the
copy, when I can make the copy, or any other details, the restrictions do
not exist.  Only that which is specified in the permission grant (i.e.,
license) applies.  Of course, ambiguities need to be resolved when they are
present, but generally, if there are no restrictions, none are implied.

So, if I enter into a license agreement with a publisher of a book to be
able to print and distribute up to 50 physical copies of that work
(invoking 2 exclusive rights, the right of reproduction and the right of
distribution), I'm good as long as I say within the 4 corners of that
license agreement.  There might be region limitations in the distribution
right grant.  If there are, I can only offer those copies for sale within
that region.  If there are no limitations, I can offer those copies
anywhere I want.

The end user of a physical book needs no copyright grant to use the book as
intended.  Therefore, there is no need for the distributor to grant me the
right to pass on any of my license rights and no right to do that would be
implied in the absence of specific language.  On the other hand, if I'm
distributing e-books and the end user is making a copy of the work by
downloading it from my site, then I would need to be able to authorize the
end user to make that copy (otherwise the end user would be an infringer).
Normally, the license agreement would explicitly provide me with that
right, but even if the agreement were silent on that point, the context
makes it clear that copies are being made by the user and a court, if
presented with the question, would very likely infer the right to pass on
the permission to make the copy.  However, in no event would anyone even
think of imposing on me an obligation to provide all of my rights to make
and distribute copies to the end user.

The basic structure of copyright is that only specific rights are exclusive
to the author and that only things that infringe one of those rights are
prohibited.  Anything not prohibited is permitted.  That's why, unless the
right to distribute says that you must pass on all rights, a licensee is
under no such obligation.



Copyright has been around for over 300 years.  While I can understand that
someone who is looking only at OSS licenses might conclude that it would
make sense to have a rule that says you have to pass on all rights, unless
given explicit permission otherwise.  However, it would make no sense for
any other situation -- not books, not music, not maps, not even commercial
software.  Software licenses don't have special rules.  Software is treated
as a literary work under the US Copyright law and inherits all of the rules
and practices that have developed since the first US copyright act in 1790.
And remember, software wasn't even explicitly a subject of copyright in the
US until the 1980 CONTU amendment to the 1976 Copyright Act.

The purpose of a rule of construction is to give effect to the most likely
intent of the parties absent specific guidance in the license.  Richard is
proposing the existence of a rule of construction that says, in the absence
of a statement otherwise, a license must pass on all rights it obtained
from the licensor when it distributes a work.

Honestly, what is the chance that the development of US Copyright Law
during the almost 200 years between 1790 and 1980 would include a rule of
construction that created a default obligation on a licensee that made
absolutely no sense for any copyrightable work that existed prior to 1980?
It's not like they knew OSS was going to show up at some point in the
future and make the rule of construction useful.

So, if Richard wants to propose that that rule of construction exists, he
needs to prove it.  Neither he, nor Larry, has provide a cite to a case or
statute that even implies such a rule.  I'm assuming that, for Richard, he
hasn't looked at the history of the Copyright Law and its application in
industries outside of OSS, but Larry should know better.  I'm starting to
strongly suspect that Larry is allowing his desire for a particular legal
rule to overshadow the actual statute and caselaw.

Jeff
Counsel, IBM Software Group


(apologies for the length of the post)

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