[Free-sklyarov-uk] a win for sanity! and free speech

[Julian T J Midgley]

On Wed, 7 Nov 2001, Jim Peters wrote:


>
> I don't think it says anything about either/or decisions between
> copyright and licences.  They'd still have their copyright ownership
> and rights whether or not they used a licence.

Indeed - Gerry has now nicely explained it all (and my summary, I admit,
was flippant, but not entirely inaccurate).  The historical perspective
section I pointed you at, said (in my words (and with additional personal
knowledge of the history of software licensing)) "early in the days of
computer software, it was not clear that computer programs were things
that could be copyrighted.  It therefore became standard practice in the
industry to use licence agreements (in conjunction with trade secret laws)
to allow software companies to control the distribution of their software.
Later it became clear that computer programs could be copyrighted, but
software companies found it convenient to continue to apply additional
restrictions through license agreements".


> Is it possible to grant a licence without holding copyright (or
> without having been granted the right to grant sub-licences by the
> copyright holder) ?  I don't think so ... I can't grant you a licence
> for other people's copyright work.  I mean I can't grant you
> additional rights that they haven't already granted you.  Maybe I
> could restrict you further, but that's different.
>
> So licencing of a work is built on top of copyright.

Not necessarily.  A license is a contract, effectively, you can have a
license to use a piece of software, or a license to make use of a piece of
machinery under a rental agreement.  Both are contracts, and the former
may involve copyright, but the latter won't.

Licensing of computer software now often involves both, but it doesn't
have to, and it certainly wasn't built on top of copyright ten/fifteen
years or more ago, when it was not all clear that computer software
/could/ be copyrighted.  Furthermore, it seems that the Court found it
somewhat distasteful that Adobe were seeking to extend the already
generous provisions of Copyright via licensing.

My flippant summary should have read "now that it is recognised that
computer software is copyrightable, you have the full power of copyright
law available - seeking to extend that power further with licenses can
push the balance of 'power' too far in your favour, and you must therefore
be more responsible than you appear to have been to date".  The last
paragraph of Gerry's email puts this better.  (Indeed - Gerry, now that
you're back, would you mind sticking your summary on the website under the EUCD section, in a new section entitled something like "related topics"?).


(The "now" is significant in the paragrahph above - history is important
in Law, and 10-15 years is a mere nothing (so don't be confused by the
fact that you've grown up with the GPL and copyright notices at the top of
every piece of code.  Once upon a time (not at all long ago), there were
court cases being held in the USA where one side was claiming copyright in
computer software, and the other was claiming that no such copyright
existed for code.  Companies that saw this going on start to use licence
agreements until the various court cases established (over a period of
years) that computer source code (and object files) really *were* works
that could be copyrighted).

For more background, see the following three paragraphs,
taken from, ironically, a document promoting UCITA:

http://copyright.ala.org/tuter4.html

"The practice of licensing-or contracting for-digital products is not new.
Libraries, for example, have been licensing for access to electronic
databases and other information services for decades.  These licenses
were, by and large, individually negotiated between libraries (or their
parent institutions, or consortia) and the content providers.

"Nor is the shrinkwrap license a new concept.  The practice of licensing
or contracting for software has many historical roots. In the early days,
nearly all software was custom designed and built for the large mainframe
computers of the age. Users were not obtaining a tangible good so much as
contacting for a service.

"The practice of shrinkwrap licensing was implemented in the mass consumer
market many years ago, when the computer became a mass marketed device and
software began to be sold as a prepackaged, so-called "off-the-shelf"
commodity. At that time, software had no specific protection under
copyright law. Producers of software, viewing desk-top computers as
potential "digital printing presses," capable of instantly making copies
of any software package, landed on this form of license to protect their
interests."

Julian

-- 
Julian T. J. Midgley                      http://www.xenoclast.org/
Cambridge, England.                          PGP Key ID: 0xBCC7863F
Beware the European Copyright Directive:  http://uk.eurorights.org/