New Open Source License: Single Supplier Open Source License

Gary W. Swearingen underway at comcast.net
Mon Jan 26 11:27:24 PST 2004


des at des.no (Dag-Erling Smørgrav) writes:

> No.  The right to modify etc. that the law grants you cannot be
> repealed by the license; if the license says you can't modify or
> reverse-engineer the software (for your own use), the license is wrong
> and unenforceable.  Likewise if it says you can't publish reviews or
> benchmarks without the author's permission.

The right to modify etc. that the law grants you is extremely limited;
the law gives almost all of modification rights to the copyright
owner.  The limited rights were late additions to the copyright
statute (17 USC 117) and a few courts have invalidated some aspects of
the statutes, but it is not a settled matter.  DMCA made some of that
moot, reverse-engineering included, IIRC, with courts bowing to the
clear intent of the Legislature that IP owners have control of how
their property is used.  The few limited rights relate to adapting
software to enable it's as-intended usage on one's computers.  (It's
bad law, too narrow, yet too imprecise, seeming to be a poor attempt
to put common usage in statute, relying on people's good sense to
avoid litigation over it.)

I haven't heard of any support for your last claim, with courts
carving further such exceptions to the ability of parties to choose
the terms of their own contracts.  Generally, a license can have an an
enforceable requirement that the licensee wear red shirts on Tuesdays,
if that's what the two parties involved have agreed upon.  I do
recognize that some state commercial laws have some exceptions to this
common contract law thinking, but I haven't heard that any mention
software reviewing.  And references?

But even things allowed by law (fair use or otherwise) may be
"prohibited" by licenses, as long as the licensor still has anything
to license.  Fair use law says that I can use one line from your
program, but a license to use a whole work may be conditioned on my
agreement to not use even one line from your program.  Now I know some
courts have tried to say this sort of thing is an attempt by state
(contract) law to "exempt" federal (copyright) law, but AFAIK, that
strange theory is going nowhere, and one shouldn't depend on it.
(The fact that federal law allows one to wear a red shirt doesn't
mean that a license can't prevent one from wearing one as a term
of the license, for another example.)


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