From: Hans Aberg (haberg@math.su.se)
Date: Tue Sep 18 2007 - 04:52:21 CDT
On 18 Sep 2007, at 10:31, Philippe Verdy wrote:
>> The copyright holder has the distribution rights, but not the rights
>> of the indivudal rights, as long as there is no clash.
>
> Hmmmm... a licence is not equivalent to a commercial contract,
> because its
> document is not signed by the recipient. It's a form of unilateral
> contract
> from the licensor to the licencee.
Well, we are speaking about a license revoking copyright law,
specifically the ownership rights of individual copies (also see
below). Normally, if a law should be revoked, there needs to be a law
admitting it, otherwise the government would sort of not be in
control. :-) Are you saying that by a unilateral license it is
possible to revoke a persons ownership rights without the owner
admits it? The link
http://en.wikipedia.org/wiki/License
says that as far as private legal persons go, a proper license can at
most limit the legal rights of the licenser, and it still seems
necessary to be able to identify the licensee.
Let's think about books. The WIPO treaty says that computer software
is protected as literary works
http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html#P56_5626
Books, you can read anywhere, resell anywhere, or do whatever you
like, as long as you do not do make bootleg copies of essential parts
and redistribute it. The licenses we speak about claim to
unilaterally revoke those rights. That seems not possible.
> Another difficulty is that the signed agreement is not collected
> back by the
> licensor that has then difficulty to prove that it was effectively
> accepted
> by the licensee.
So this is the point I brought up: there must be an agreement by the
licensee, and the licenser must be able to identify the licensee,
because otherwise the one claimed to be a licensee by the licenser
only needs to ask for proof of a license agreement. Same as with a
contract. When you rent a car, I believe one has to sign a paper,
which is collected back, just in order to ensure one has proof in
court. It is the person that clicks the box or opens the package that
makes the agreement, and the licenser must be able to identify that
person. This is what a written contract is used for: it makes sure
exactly what rights the licenser gives up, and also identifies the
person.
> And another problem is that the buyer is most often not
> given a chance to review the license before the purchase,
So this is the same as with contracts, simply because the licensee is
expected to give ownership rights.
So it seems me what are called "licenses" in the computer industry
are not that in the limited sense of the licenser giving up rights,
but actually contracts, where the licensee is asked giving up rights
granted by copyright law.
It is different with licenses regulating the redistribution of art
work (such as software), because the copyright holder always controls
that. What I am speaking about are licenses restricting copy
ownership rights.
> Note that some legislation make unbalanced contracts void, as if it
> was
> never signed and had never existed.
This is the normal thing, I would think, and this is also what I
indicated in my post. For example, it is normally legal to kill
another person even if both agree to it. There must be a law,
indicating that a particular law can be revoked, typically only in
limited circumstances.
> For these reasons, licenses are very
> weak kinds of contracts, unless its content is made publicly
> reviewable
> before the purchase.
If the user should give up ownership rights, I do not think it is
sufficient that the licenser makes it public, because the licensee
must agree to revoking those rights. The problem is that nowadays,
copyright law automatically applies, unless revoked by special
agreement.
Hans Åberg
This archive was generated by hypermail 2.1.5 : Tue Sep 18 2007 - 04:55:14 CDT