Copyright misuse and software licenses (time bombs)

[Carol Shepherd]

Legal argument below, from a colleague.

Leaving aside UCITA considerations in MD and VA (and arguments that a
license is essentially a sale due to the context of the
transaction)...is there any *copyright* caselaw supporting this (ie,
first sale doctrine applying to licenses rather than sales)?  I know
that several leading commentators have advocated it but was not aware of
any supporting caselaw.  I am aware of Lasercomb but not of other
copyright misuse jurisprudence, particularly with regard to self-help
remedies in licensed materials.  Has any developed, that I should
immediatly go read?  Thanks.


"...what your client is attempting to do is to unlawfully leverage the
limited copyright into control over a sue Congress excluded from the
copyright. There is no "exclusive right to use" software any more than
there is an "exclusive right to read a copyrighted book." When someone
pays for the right to reproduce the work (the computer program) onto
their hard drive, the copyright owner has no right to, in effect,
destroy their copy by disabling it. Using the software
is the same as watching a movie, playing a CD or reading a book. No book
publisher gets to say "this book cannot be read after December 31, 2010
unless you pay me $20 more for the license to read it." By the same
token, no software publisher gets to say "even though you own the copy
reproduced onto your hard drive under license from me, and even though
no copyright extends to the private performance of a work, I am
conditioning my license to reproduce the work on your agreement to give
me a right Congress denied me, namely, the right to limit your private
performance of the work."


--
Carol Ruth Shepherd
Arborlaw PLC
Ann Arbor MI USA
734 668 4646 v  734 786 1241 f
Arborlaw - a legal blog for entrepreneurs and small business
http://arborlaw.com


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[John Noble]

Nothing is more  typical of a license, distinct from a sale, as its
term, i.e. the date from and to which it is effective. An implied
license, or written license that does not provide otherwise, is
terminable at will.

The usual legal problems with time bombs are the failure to disclose
their existence at the outset, leading to claims of fraud
by omission; and an actual or constructive unauthorized access when
they are triggered, in claimed violation of the Computer Fraud and
Abuse Act.

Your colleague's argument is fascile, but it fails in its premise--
"Using the software is the same as watching a movie, playing a CD or
reading a book." No, it's not. You don't reproduce a movie, CD or
book every time you run, play or read them. Your  movie, CD or book
is not generally exempt from the first sale doctrine, as is software
under 109(b).

John Noble

At 1:14 PM -0500 12/6/07, Carol Shepherd wrote:

>Legal argument below, from a colleague.
>
>Leaving aside UCITA considerations in MD and VA (and arguments that
>a license is essentially a sale due to the context of the
>transaction)...is there any *copyright* caselaw supporting this (ie,
>first sale doctrine applying to licenses rather than sales)?  I know
>that several leading commentators have advocated it but was not
>aware of any supporting caselaw.  I am aware of Lasercomb but not of
>other copyright misuse jurisprudence, particularly with regard to
>self-help remedies in licensed materials.  Has any developed, that I
>should immediatly go read?  Thanks.
>
>
>"...what your client is attempting to do is to unlawfully leverage
>the limited copyright into control over a sue Congress excluded from
>the copyright. There is no "exclusive right to use" software any
>more than there is an "exclusive right to read a copyrighted book."
>When someone pays for the right to reproduce the work (the computer
>program) onto their hard drive, the copyright owner has no right to,
>in effect, destroy their copy by disabling it. Using the software
>is the same as watching a movie, playing a CD or reading a book. No book
>publisher gets to say "this book cannot be read after December 31, 2010
>unless you pay me $20 more for the license to read it." By the same
>token, no software publisher gets to say "even though you own the
>copy reproduced onto your hard drive under license from me, and even
>though no copyright extends to the private performance of a work, I
>am conditioning my license to reproduce the work on your agreement
>to give me a right Congress denied me, namely, the right to limit
>your private performance of the work."
>
>
>--
>Carol Ruth Shepherd
>Arborlaw PLC
>Ann Arbor MI USA
>734 668 4646 v  734 786 1241 f
>Arborlaw - a legal blog for entrepreneurs and small business
>http://arborlaw.com
>
>
>**********************************************************************
>For Listserv Instructions, see http://www.lawlists.net/cyberia
>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>Need more help? Send mail to: Cyberia-L-Request@...
>**********************************************************************

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