licensinghandbook.com » copyright http://www.licensinghandbook.com The companion site to the Software Licensing Handbook Mon, 17 May 2010 15:07:13 +0000 en hourly 1 http://wordpress.org/?v=3.3 FOSS licenses upheld! http://www.licensinghandbook.com/2010/02/23/foss_licenses_upheld/ http://www.licensinghandbook.com/2010/02/23/foss_licenses_upheld/#comments Tue, 23 Feb 2010 14:32:03 +0000 Jeff http://www.licensinghandbook.com/?p=1266 After a five-year struggle in US Federal District Court, Robert Jacobson recently prevailed in his copyright infringement claim against Matthew Katzer as a result of Katzer’s alleged misappropriation of open source code from Jacobson’s Java Model Railroad Interface project.

You can read all of the story in more detail at ConsortiumInfo.org.  The end result is a huge win for open source developers as a result of three key findings by the District Court:

  1. Violation of an open source software license constitutes copyright infringement, not just breach of contract (this was first upheld by the Federal Appeals Court in 2008 in this case).
  2. Use of open source code without attribution is a violation of the Digital Millennium Copyright Act.
  3. These violations entitle the Plaintiff (Jacobson) to monetary damages – which, as they’re based on violations of copyright law, are potentially much more substantial than those which may have been limited by contract law.

There are some mitigating circumstances in that the results in this case are not yet dispositive of all future violations, as the ruling of a US District Court is limited to absolute applicability only in its geographic district.  The concern is that a Federal Appellate Court (including the US Supreme Court) could overrule or otherwise reverse this decision.  Worse yet would be another US District Court coming to a different conclusion with a similar set of facts.

But for now, FOSS developers can rest a little easier knowing that their creations are protected by copyright law.

]]> http://www.licensinghandbook.com/2010/02/23/foss_licenses_upheld/feed/ 0 GPL, WordPress and Themes http://www.licensinghandbook.com/2009/11/16/gpl-wordpress-and-themes/ http://www.licensinghandbook.com/2009/11/16/gpl-wordpress-and-themes/#comments Mon, 16 Nov 2009 14:32:24 +0000 Jeff http://www.licensinghandbook.com/?p=1239 I saw an intriguing post the other day by Jennifer Schiffer on WordPress, themes and the GPL.  She linked to a video of Matt Mullenweg (one of WordPress’ lead developers) who was talking about why WordPress was a GPL product (short answer: they didn’t really have a choice because WP is based on b2, which was GPL) and, more specifically, was talking about why themes and plugins are also then GPL.

The truth of the matter is that the GPLv3 is a very restrictive license, in as much as it’s also a harbinger of freedom.  The GPL was written in a way to specifically retain the freedoms it grants through successive iterations of a particular product, or its add-ons.  This means that if you like a GPL product, develop a derivative work, a modification, a plug-in or any other type of add-on, the resulting work is also going to be covered by the GPL (you do not have a choice in this).

“You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.” – Section 10 of the GPL

This means that unless the WordPress GPL (yes, they’re specific by product… you can ADD restrictions if you want… so no 2 GPL’d products are necessarily identically licensed – we’ll talk about this in a minute) allowed for a theme developer to restrict the distribution of a theme, a theme developer isn’t allowed to add that restriction on their own.  Your development on a GPL product inherits the license of the original product.

Inheritance is a powerful concept because it creates license congruity, ad infinitum, for all downstream works of the original code.  It would be extremely difficult to manage license compliance if WordPress had one license, but a plug-in had a different one.

But there’s apparently a wonderful new theme available for WordPress called Thesis.  Its developer sells two several different versions of the theme (selling under the GPL is fine).  The problem comes to light when you look at the options:

  1. Personal:  one site only; footer link must remain intact; can’t re-sell theme or modifications
  2. Developer:  can create multiple sites and must pay Thesis developer for each site deployed; can remove footer link; can’t re-sell theme or modifications

And these options are problematic because they violate the GPL v2 under which WordPress is licensed.  Specifically, Section 2, which states, in part:

“You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”

and Section 6:

“Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”

(Note that v2 and v3 of the GPL are vastly different animals… and v2 was actually more in the realm of “free as in free beer” than v3, which touts freedom as “free as in free speech, not free beer”.)

So, in fact, the Thesis theme, as a WordPress derivative work, is bound to the GPLv2 license that WordPress is licensed under.  As such, even the sale of the theme is a problem, as are the one-site-only restrictions and the “can’t re-sell” restrictions.  Note: the footer link restriction is probably fine, as it could qualify as the attribution allowed under the GPL.  Additionally, it could be argued that the fee charged is for the “physical act of transferring a copy” as allowed by Section 1 of GPLv2, but even then, the remainder of the unauthorized restrictions are still problematic.

But who is going to do anything about this violation?  Who has the right to enforce the license?  WordPress?  The folks at b2 (WordPress’ predecessor)?  Any particular end user?  Technically, it’s the folks at WordPress who have the right to enforce their license upon theme and plug-in developers.  They have the ability to potentially even sue to prevent a rogue developer from violating their license with WordPress [though I'm guessing that a theme developer is going to try to argue that a theme isn't a derivative work or a modification].  But this is inherently difficult.  So instead, WordPress is taking a slightly different tack.  They’re going to create a Theme Page on the main WordPress website which only lists themes that follow the GPL (by the way, all derivatives have to be GPLv2 licensed, as the WordPress license doesn’t allow for newer versions of the GPL to apply).  I’m guessing that Thesis won’t be listed.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/11/16/gpl-wordpress-and-themes/feed/ 8 This Week on The Web 2009-10-04 http://www.licensinghandbook.com/2009/10/04/this-week-on-the-web-2009-10-04/ http://www.licensinghandbook.com/2009/10/04/this-week-on-the-web-2009-10-04/#comments Sun, 04 Oct 2009 14:32:08 +0000 Jeff http://www.licensinghandbook.com/?p=1203 These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/10/04/this-week-on-the-web-2009-10-04/feed/ 0 This Week on The Web 2009-09-28 http://www.licensinghandbook.com/2009/09/28/this-week-on-the-web-2009-09-28/ http://www.licensinghandbook.com/2009/09/28/this-week-on-the-web-2009-09-28/#comments Mon, 28 Sep 2009 14:32:05 +0000 Jeff http://www.licensinghandbook.com/?p=1196 These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/09/28/this-week-on-the-web-2009-09-28/feed/ 0 This Week on The Web 2009-09-20 http://www.licensinghandbook.com/2009/09/20/this-week-on-the-web-2009-09-20/ http://www.licensinghandbook.com/2009/09/20/this-week-on-the-web-2009-09-20/#comments Sun, 20 Sep 2009 14:32:19 +0000 Jeff http://www.licensinghandbook.com/?p=1188 These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/09/20/this-week-on-the-web-2009-09-20/feed/ 0 This Week on The Web 2009-09-13 (my birthday edition) http://www.licensinghandbook.com/2009/09/13/this-week-on-the-web-2009-09-13-my-birthday-edition/ http://www.licensinghandbook.com/2009/09/13/this-week-on-the-web-2009-09-13-my-birthday-edition/#comments Sun, 13 Sep 2009 14:32:33 +0000 Jeff http://www.licensinghandbook.com/?p=1178 It happens to be my birthday weekend and between eating some great food, playing Guitar Hero with my wife and hanging with the family, these are the things that happened around the web this week – maybe you already read about them, maybe you need to again – there were some REALLY great discussions going on.  Come join the party on twitter (follow me here and you’ll join the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/09/13/this-week-on-the-web-2009-09-13-my-birthday-edition/feed/ 0 This Week on The Web 2009-09-06 http://www.licensinghandbook.com/2009/09/06/this-week-on-the-web-2009-09-06/ http://www.licensinghandbook.com/2009/09/06/this-week-on-the-web-2009-09-06/#comments Sun, 06 Sep 2009 14:32:46 +0000 Jeff http://www.licensinghandbook.com/?p=1170 The things that happened around the web this week – maybe you already read about them, maybe you need to again.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/09/06/this-week-on-the-web-2009-09-06/feed/ 0 This Week on The Web 2009-08-30 http://www.licensinghandbook.com/2009/08/30/this-week-on-the-web-2009-08-30/ http://www.licensinghandbook.com/2009/08/30/this-week-on-the-web-2009-08-30/#comments Sun, 30 Aug 2009 14:32:27 +0000 Jeff http://www.licensinghandbook.com/?p=1146 The things that happened around the web this week – maybe you already read about them, maybe you need to again.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/08/30/this-week-on-the-web-2009-08-30/feed/ 0 My Lego Love is Fast Fading http://www.licensinghandbook.com/2009/08/28/my-lego-love-is-fast-fading/ http://www.licensinghandbook.com/2009/08/28/my-lego-love-is-fast-fading/#comments Fri, 28 Aug 2009 14:32:56 +0000 Jeff http://www.licensinghandbook.com/?p=1143 I’ve loved Lego since I was a little kid.  I haven’t really counted, but I’m guessing I still have (in large crates in my garage) somewhere around 300+ Lego sets of varying size.  There’s something about allowing your creativity to roam that really interests me.  And as a company, the Lego Group has also been of keen interest from an intellectual property perspective ever since they started becoming sticklers about calling Lego blocks “Lego Bricks and Toys”.  But I think they’ve crossed the line recently with a “rejection” preventing the mock-rock group Spinal Tap from including a Lego-brick-based stop-motion video on their latest DVD.

I use the word rejection in quotes in the prior sentence because I don’t think that the Lego Group had any rights on which to make their claim.  Per the article, Lego Group claimed copyright over the figures themselves (known in Lego parlance as a “minifig”) whereas Spinal Tap’s IP lawyer clearly states that they weren’t intending to show the Lego Group’s logo or use the word Lego anywhere in the DVD.  Copyright protects written and visual works embodied in a tangible medium of expression.  So I’m trying to figure out how the Lego Group thinks that they have a copyright over the minifigs themselves.  I just don’t see it.  Even from a search at the US Copyright Office, what I see are a slew of Lego registrations over the various books, stories, videogames and logos.  I also see one deemed a “sculpture”, which I can only assume is a large version of one of the Lego minifig.  But then the copyright would only cover that sculpture itself – not necessarily every little conceivable permutation of Lego minifig made possible by the myriad tops, bottoms, heads, hair and accessories available.

But even assuming that Lego holds a copyright in the general design of a Lego minifig, would the use for this DVD not qualify as fair use?  I’m not sure it would – it’s parody, but not of Lego… it’s for profit… it “takes” the entire work.  OK.  Fair use is out.  (Which blows Spinal Tap’s attorney’s idea away, too.)

So if the minifig IS registered, yet is distributed 4 billion times (per their company profile)… without any kind of licensing document attached to it… by a company that zealously protects its intellectual property rights… leads me to believe that even the Lego Group knows that they’re on shaky ground.  [Interestingly enough, their company profile also tells the story about the company receiving a patent for their "Lego System" in 1958 - which would have long since expired.  In the US, usually (but not always), intellectual property is protected by only one type of protection.  You don't get to gain a copyright after your patents run out.  Either it's a tangible, useful good... or it's a work of art.]

All in all, I think Spinal Tap gave up WAAAAAAYYYY too early on this one.  What’s next?  Do recording artists need the permission of their guitar manufacturers (which, btw, are covered by copyright by some designers) to play their guitars in their videos?  Of course not.  The guitar manufacturer still holds copyright – but they gave UP the right to restrict where it was played in order to sell the guitar.  Same is true for the Lego Group.

Anyone else wanna’ weigh in on this?

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/08/28/my-lego-love-is-fast-fading/feed/ 0 This Week on The Web 2009-08-16 http://www.licensinghandbook.com/2009/08/16/this-week-on-the-web-2009-08-16/ http://www.licensinghandbook.com/2009/08/16/this-week-on-the-web-2009-08-16/#comments Sun, 16 Aug 2009 14:32:57 +0000 Jeff http://www.licensinghandbook.com/?p=1128 The things that happened around the web this week – maybe you already read about them, maybe you need to again:

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/08/16/this-week-on-the-web-2009-08-16/feed/ 0 Cnet author advocates theft http://www.licensinghandbook.com/2009/08/04/cnet-author-advocates-theft/ http://www.licensinghandbook.com/2009/08/04/cnet-author-advocates-theft/#comments Tue, 04 Aug 2009 14:32:53 +0000 Jeff http://www.licensinghandbook.com/?p=1105 I’m simply stunned by a recent article written by Cnet columnist Rafe Needleman.

In his post, he blatently advocates buying “lesser” versions of Microsoft products to take advantages of the discounts available to certain classes of users, regardless of whether you actually fall into that user class.  His cavalier attitude towards the vendor (telling his readers that Microsoft probably doesn’t check up on usage) and the user (suggesting that users who pay the appropriate price for their user class are “suckers”) is abhorent and I’m frankly disappointed that the editors at Cnet allowed this garbage to see daylight.

I’ve responded twice in the comments (as “negot8or” if you care to read them… once on page 1 and again on page 2).  The general gist of my response is that if you don’t like the pricing for a particular product, don’t buy it.  Vote with your pocketbook.  Vendors who don’t sell enough software will either drop their price or drop out of the market.  But buying something you’re not licensed to use and using it anyways is a form of theft (“software piracy” if you will).  Software has historically been sold on the basis of end-user value.  It’s the right of the vendor to charge whatever they want.  Stealing, in any form, isn’t justified because there exists a cheaper price somewhere else – or for someone other than you.

As much as I advocate for better software licensing terms and more transparency from vendors, I do not believe in taking what isn’t yours.  I hope you agree.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/08/04/cnet-author-advocates-theft/feed/ 0 Amazon’s Orwellian Behavior http://www.licensinghandbook.com/2009/07/18/amazons-orwellian-behavior/ http://www.licensinghandbook.com/2009/07/18/amazons-orwellian-behavior/#comments Sat, 18 Jul 2009 14:32:00 +0000 Jeff http://www.licensinghandbook.com/?p=1070 As many are reporting, Amazon.com “recalled” an e-book remotely in response to a request by a publisher.  This is all kinds of scary and most folks are centered on the purely tangible nature of the problem.  I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.

When you buy a book, you’re actually completing two transactions.  You’re purchasing the paper – the tangible product.  But you’re also buying a copy of the story itself – the intellectual property.  Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher.  The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)).  Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors.  And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.

The other transaction – the one for the intellectual property – is much more interesting (IMHO).

Copyright is the protection most books are afforded.  When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”.  What you can’t do is make copies of the book.  If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online).  But short of sale, the ownership in the copy is yours.  Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.

The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service.  I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did.  But it doesn’t (Amazon Kindle ToS as of 2/9/2009):

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. [Emphasis added.]

I have other problems with this document, of course (such as the restrictions on resale).  But on its surface, Amazon grants a perpetual license to the purchased content.  So through their behavior, following their own Terms of Service, they’re in breach.  But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.

For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”

[Update:  Amazon's Herdener (the source of the above quote) actually said more:

These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers' devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances.

This doesn't really change anything.  Even if an unauthorized party sells you something they don't own, so long as you don't know that the item wasn't theirs to sell, you retain ownership as a "bonafide purchaser."  I'm glad to see that Amazon won't remove books in the future, seeing that they weren't supposed to do it in the first place.]

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

]]> http://www.licensinghandbook.com/2009/07/18/amazons-orwellian-behavior/feed/ 1 License Resale http://www.licensinghandbook.com/2009/06/22/license-resale/ http://www.licensinghandbook.com/2009/06/22/license-resale/#comments Mon, 22 Jun 2009 14:32:29 +0000 Jeff http://www.licensinghandbook.com/?p=1001 Vinnie Mirchandani at deal architect pointed out a Ray Wang article on the resale of unused licenses.  My thoughts are in the comments on Ray’s article.  But generally speaking, regardless of what Ray suggests, you can’t do it in the US (or the rest of the Berne Convention countries) under most licenses which have express prohibitions against it (you can almost always contract away your rights).

And, even if you could, your organization probably doesn’t have tracking enough to make it possible – just remember that if you overuse your permitted license count, chances are there’s another provision in your license that allows the vendor to charge you (perhaps at non-discounted pricing) for the overage.

What I DO like about Ray’s suggestion is that idea that you should try to negotiate for a recapture of maintenance fees on unused licenses.  If you can’t resell them, the least you can do is take an annual count and only pay maintenance on the ones you’re using.  There is, of course, trouble with this thought, too – as there are some vendors that used to allow this (the last one I remember was Autodesk).  But the trouble is that you can get into a situation where you only upgrade SOME of your licenses to the current version because not all of them are currently covered by maintenance and the upgrades provided under such program.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2009/06/22/license-resale/feed/ 1 Caulfield on Copyright http://www.licensinghandbook.com/2009/06/21/caulfield-on-copyright/ http://www.licensinghandbook.com/2009/06/21/caulfield-on-copyright/#comments Mon, 22 Jun 2009 02:32:16 +0000 Jeff http://www.licensinghandbook.com/?p=997 Madisonian pointed me towards a recent decision by the US District Court in Manhattan regarding a potential satire/parody of JD Salinger’s Catcher in the Rye.

Granted, this has nothing to do with software… but it has everything to do with copyright.  So it’s still applicable.  :)

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2009/06/21/caulfield-on-copyright/feed/ 0 A Few Licensing Issues with Amazon http://www.licensinghandbook.com/2009/05/20/a-few-licensing-issues-with-amazon/ http://www.licensinghandbook.com/2009/05/20/a-few-licensing-issues-with-amazon/#comments Thu, 21 May 2009 02:32:37 +0000 Jeff http://www.licensinghandbook.com/?p=947 Many of the technologies we use every day come with a license agreement of some sort.  You might not even realize that it’s so because of where you are in the transaction chain – either as a buyer or as a seller.  Content, for instance, is created, licensed/sold, packaged, re-licensed/re-sold, bundled, re-licensed/re-sold, and on and on so many times that you can hardly figure out who actually created much of what you read online.  This is important, especially insofar as you want to be sure of who is providing the information that you use to make decisions, but also because as information is licensed/bundled/re-licensed over and over, it’s possible that the content creator isn’t getting what they earned as part of the transaction (namely, credit/attribution and/or payment).

Several services have popped up recently that are allowing content to move from one format to another – especially on Amazon-related products and platforms (ie: the Kindle).  More specifically, Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price.  So, if I were to want this blog to be available as a Kindle subscription for say, $1.99, I would get $.31 for every subscription.  But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen.  And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all.  [For a full conversation on this, see this great post by Edward Champion.]

Additionally, Amazon’s current system doesn’t actually even check to see if I’m the owner of the blog I’m submitting into the Kindle Blog service!  So I could create an account, submit any of your blogs as my own, and in just a few clicks, create Amazon entries for your blog’s content – even competing with the “real” listing (if you so happened to have agreed to the terms as well and started using the service).

So, for the record, while I love Amazon for a bunch of reasons, this blog is NOT being made available as a Kindle subscription.  It is, however, being posted ON Amazon as part of Amazon’s author services… so you can read the individual postings if you go to the Software Licensing Handbook page at Amazon.  But if you happen to see it on your Kindle device, you’re paying someone else for stolen content.

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2009/05/20/a-few-licensing-issues-with-amazon/feed/ 0 More interesting copyright issues http://www.licensinghandbook.com/2009/04/28/more-interesting-copyright-issues/ http://www.licensinghandbook.com/2009/04/28/more-interesting-copyright-issues/#comments Tue, 28 Apr 2009 14:32:10 +0000 Jeff http://www.licensinghandbook.com/?p=914 According to this article from Wired, Apple is involved in some very interesting copyright violation cases related to their fairplay copy protection scheme and DMCA takedown notices they provided to folks discussing how to circumvent Apple technologies.

I would pay attention to what the US Copyright Office decides based on their review – and on the results of the lawsuit itself.  While I still strongly believe that US intellectual property right laws are able to handle new technologies… I’ve become a little concerned about how the courts have been reacting to various claims (as well as legislative moves like the DMCA).

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2009/04/28/more-interesting-copyright-issues/feed/ 0 Facebook’s Voting on ToS http://www.licensinghandbook.com/2009/04/07/facebooks-voting-on-tos/ http://www.licensinghandbook.com/2009/04/07/facebooks-voting-on-tos/#comments Tue, 07 Apr 2009 14:32:10 +0000 Jeff http://www.licensinghandbook.com/?p=897 [Disclaimer:  While I'm a Facebook user, I do not know all of the ins and outs of this particular issue, as I've not paid too much attention since they rolled back to the old ToS.]

Facebook has announced that they plan to have members vote on the new Terms of Service they’ve been working on.  In fact, they even say that it’s been a group of Facebook lawyers and a group of law students.

Facebook lawyers, with the help of law students, have been reading the 3,000-plus comments, and the administrators of the original protest group against the terms of use changes are consolidating the feedback in a list of “key concerns,” according to Facebook. The company has also sought input from privacy, copyright, and Internet legal experts.

OK, so I’m glad that they’re seeking input from privacy and copyright experts, too.  Even more interesting, though, is that unless 7,000 people submit comments, they’re only going to take the response as advisory.

Facebook will hold a vote on any proposed change if at least 7,000 members submit comments. The results of the vote will be “advisory” if less than 30 percent of Facebook active users participate in the process. If 30 percent or more of active members vote, the results of the vote will be binding, according to Axten.

In theory, that’s very representative.  If the people don’t feel the need to vote, those that do shouldn’t be counted as a representative sample of the entire population.

But let’s also be honest and say that the average teenager does not have a complete understanding of copyright, privacy or any of the other potential legal issues strewn about a Terms of Service document.  To them, music has always been “free”, digital nannies are more effective at stopping them from copying Wikipedia articles for school papers than the fear of punishment, and privacy is something they can control through the use of fake identities online.  It’s not that they’re unable to comprehend, they just haven’t had to do so up to this point.  When given the choice of “Accept” or “Reject” when installing software… how many of you read the language and then click “Reject”?

So while I think it’s commendable that Facebook offer up it’s proposed ToS to the user population for a vote, I think it’s ultimately going to not be an effective means by which the “public” will get Terms of Service that are truly acceptable to them.  The simple truth is that Facebook is a service.   They offer it to the world for free and they have created a Terms of Service document which governs the user’s use.  If the user doesn’t like the ToS, they shouldn’t use the service.  Facebook should have some sort of internal moral compass to not do anything that’s a violation of their user’s rights (even if their users don’t fully understand such rights), but that isn’t a legal requirement.  At the end of the day, Facebook should post it’s Terms of Service in both legal and layperson’s terms – disclosing the good (and more importantly) the “bad”… in detail.

Hopefully, potential users can then make an informed choice about how they wish to use the service.

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2009/04/07/facebooks-voting-on-tos/feed/ 0 DMCA’s 10 Year Anniversary http://www.licensinghandbook.com/2008/10/28/dmca-10-year-anniversary/ http://www.licensinghandbook.com/2008/10/28/dmca-10-year-anniversary/#comments Wed, 29 Oct 2008 01:32:34 +0000 Jeff http://www.licensinghandbook.com/?p=351 Wired has a great re-cap of the history and impact of the Digital Millennium Copyright Act, signed ten years ago today (and 3 years before the new millenium, just in case anyone noticed).

Here are a few more reactions:

Electronic Frontier Foundation

Amrit Williams Blog

Wired Blog Network

Public Knowledge

Freedom to Tinker

TechDirt

Free Culture News

And, of course, the obligatory profiteering.  Though, to be honest, if I could’ve thought to do it first, I probably would’ve.  :)

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/10/28/dmca-10-year-anniversary/feed/ 0 J.K. Rowling: $4.5Billion, Copyright: 0 http://www.licensinghandbook.com/2008/09/09/jkrowling/ http://www.licensinghandbook.com/2008/09/09/jkrowling/#comments Tue, 09 Sep 2008 13:32:52 +0000 Jeff http://www.licensinghandbook.com/?p=255 Back in May, I wrote about the copyright infringement suit filed by J.K. Rowling against the author and publisher of the Harry Potter Lexicon.

At the time, I hoped that the courts would realize that, on its face, the Lexicon qualified as fair use.  Apparently not.

Ms. Rowling’s response is that the potential publication of the Lexicon was so severe, she stopped writing… and that if publication was allowed, she “firmly believe that carte blanche will be given to anyone who wants to make a quick bit of money, to divert some Harry Potter profits into their own pockets.”

Which is an interesting thing to say, as Orson Scott Card previously stated:

“Well, heck, I feel like the plot of my novel Ender’s Game was stolen by J.K. Rowling.

A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.”

I hope this isn’t the end of this case… as the results with respects to scholarly works will be tragic.  We can’t see the contents of the Lexicon, so we will ultimately be unable to determine whether, as the court stated, the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.”

[Update: Michael Madison at madisonian.net, has a great review of the case.]

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/09/09/jkrowling/feed/ 0 Public Domain Tool http://www.licensinghandbook.com/2008/07/20/public-domain-tool/ http://www.licensinghandbook.com/2008/07/20/public-domain-tool/#comments Mon, 21 Jul 2008 01:32:44 +0000 Jeff http://www.licensinghandbook.com/?p=166 Ever wonder whether the copyright on a particular work has expired? Trying to figure it out amongst all of the various copyright extensions isn’t exactly simple. So Michael Brewer and the American Library Association has done it for you – with pinache! Check out the Public Domain Tool.  Make sure you read the astericks, though.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/07/20/public-domain-tool/feed/ 0 First Sale Doctrine http://www.licensinghandbook.com/2008/05/28/first-sale-doctrine/ http://www.licensinghandbook.com/2008/05/28/first-sale-doctrine/#comments Thu, 29 May 2008 02:32:05 +0000 Jeff http://www.licensinghandbook.com/2008/05/28/first-sale-doctrine/ As esoteric as the subject matter of this blog can be, I tend to stay away from the really, really, really nitty-gritty legal discussions for fear that most of you don’t really care.  Heck, I barely care sometimes.

But the first sale doctrine is an important aspect of the Copyright Act.  Basically (and over-simplistically), it says that once you “buy” a copyrighted work, you can sell it to someone else however you wish.   In other words, if you’ve purchased a copy of the Software Licensing Handbook (hint, hint)… you can resell it to someone else for whatever you can get for it.  So while you may have paid $44.95 to me, if you were able to get someone to pay you $200 for it, good for you.

Within the software licensing realm, this is a little more tricky.  Most business-to-business software licenses specifically prevent you from transferring, assigning, or otherwise divesting yourself of the rights you have, unless all you’re doing is terminating the license (in which case, the license goes away).  But what about commercial, off-the-shelf (COTS) software?  Something like, say, Microsoft Office.  If you buy it from PCWarehouse for $300… can you resell it on eBay?

Well… someone is testing the waters against a company called Autodesk.

Michael Madison over on Madisonian has a great summary.

Pay attention to the results on this one.  It might not affect the bulk of us on the software side of things, as our negotiated software licenses already deal with all of this minutia)… but the music and movie industry-related impact could be significant.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/05/28/first-sale-doctrine/feed/ 0 Harry Potter http://www.licensinghandbook.com/2008/05/05/harry-potter/ http://www.licensinghandbook.com/2008/05/05/harry-potter/#comments Mon, 05 May 2008 14:32:26 +0000 Jeff http://www.licensinghandbook.com/2008/05/05/harry-potter/ The vast majority of software is protected under the Copyright Act as a work “fixed in a tangible medium of expression.” Some is patented, but copyright automatically affixes itself to any software as it’s being written – and it’s cheap (currently $30) to obtain a registered Copyright. So it’s important sometimes to watch what litigation is going on in the non-software copyright world – because until there are separate laws governing what’s going on with software, the interpretation of existing Copyright laws can have a significant impact on how it “works” with software. One such case will be interesting to watch (even if short-lived) because of the potential impact it would have on the ability to use/reuse “ideas” from someone else.

I’m guessing that some of you have heard about J.K. Rowling’s copyright infringement suit against Steven Vander Ark. Mr. Vander Ark wrote “The Harry Potter Lexicon” – basically a HarryPotter encyclopedia. She’s upset because he’s making money off her characters. Never mind the fact that she loved the online version of the Lexicon so much that she admitted to using it while writing several of the subsequent novels when she needed to quickly look up facts and info about her own series.

Well – before there was Harry Potter, there was EndersGame by Orson Scott Card. If you’re not into speculative science fiction, you may not have heard of the book… suffice it to say that it’s good – and popular.

Mr. Card recently wrote an article addressing, in plain terms, the issues at hand… and taking Ms. Rowling to task for her hypocrisy. As the saying goes, “daaaaaang!”

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/05/05/harry-potter/feed/ 0 Malware Licensing http://www.licensinghandbook.com/2008/04/30/malware-licensing/ http://www.licensinghandbook.com/2008/04/30/malware-licensing/#comments Thu, 01 May 2008 02:32:41 +0000 Jeff http://www.licensinghandbook.com/2008/04/30/malware-licensing/ Wow. More here.  And here.  And here (from the original Symantec Alert).  (For those who don’t want to click the links, a malware author inserted a EULA into their virus code.)

First, let’s be clear.  Even though the software could be used for malicious purposes, this doesn’t affect the ability to license it.  Copyright protection doesn’t have any exceptions when it comes to things that might be used in a bad way.  So, midway through the article where it says “While not legally binding…”, the author is incorrect.

However, what the software license holder would potentially have trouble with is enforcement. If you don’t want to make it known that you’re the one creating malware, it will be quite difficult to be public enough to obtain license compliance.

But I am impressed with the idea, as well as the creativity involved in coming up with their penalties (they threaten that they will turn a violator over to the antivirus companies and explain how to shut down the effects of the malware).

The best part of this is the statement from Symantec:  “Despite the clear licensing agreement and the associated warnings, this package still ended up being traded freely in underground forums shortly after it was released. It just goes to show you just can’t trust anyone in the underground these days. ;) ”

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/04/30/malware-licensing/feed/ 0 Terms of Use http://www.licensinghandbook.com/2008/04/05/terms-of-use/ http://www.licensinghandbook.com/2008/04/05/terms-of-use/#comments Sun, 06 Apr 2008 04:10:37 +0000 Jeff http://www.licensinghandbook.com/2008/04/05/terms-of-use/ The SaaS/ASP ship has sailed and we’re now living in a world in which online services will continue to proliferate and will probably (by some estimates) overtake installed software in the next few years. Each one of these services has some sort of Terms of Use or Terms of Service and as you might imagine, the larger the company, the more potentially onerous the terms and the impact.

Last month, Adobe got caught in a little tiff (ha!) regarding their Terms of Use. John Nack is Adobe’s Senior Product Manager for Photoshop. He blogs on Photoshop-related topics and brought the Terms of Use to the forefront. You can see my comments (posting as “Jeff”).

As of yesterday, in response to public complaint, Adobe has modified their Terms. The relevant new language:

“Adobe does not claim ownership of Your Content. However, we do need certain rights from you, with respect to Your Content, in order to operate the Service and in order to enable you to do all the things this Service affords you the ability to do. Therefore, with respect to Your Content, you grant Adobe a worldwide (because the internet is global), royalty-free (meaning we do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) fully sublicensable (so that we can permit our affiliates, subcontractors and agents to deliver the Service on our behalf) license to use, reproduce and modify Your Content solely for the purposes of operating the Service and enabling your use of the Service. With respect to Your Shared Content, you additionally grant Adobe the rights to distribute, publicly perform and publicly display Your Shared Content (in whole or in part) for the sole purposes of operating the Service and enabling your use of the Service and to sublicense Your Shared Content to Other Users subject to the limitations of Section 7 below. These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis. Further, you may terminate Adobe’s right to distribute, publicly perform and publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Adobe’s rights by removing Your Content from the Service. (Detailed instructions on how to do these things can be found at http://www.adobe.com/cfusion/webforums/forum/messageview.cfm?forumid=74& catid=684&threadid=1351324&enterthread=y). Upon removal of Your Content from the Service or upon making Your Shared Content no longer shared, Adobe shall have a reasonable time to cease use, distribution and/or display of Your Content. However, you acknowledge and agree that Adobe shall have the right to keep archived copies of Your Content.”

Overall, I’m impressed not only by Adobe making the change, but also by the way they explain the licensing language (using the “term of art” with a parenthetical in plain English). Good job, Adobe! Now, if only others would be so responsive.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/04/05/terms-of-use/feed/ 5 IP Donation? http://www.licensinghandbook.com/2008/02/27/ip-donation/ http://www.licensinghandbook.com/2008/02/27/ip-donation/#comments Thu, 28 Feb 2008 02:54:51 +0000 Jeff http://licensinghandbook.com/2008/02/27/ip-donation/ IP Donor Sticker

I saw this on the intertubes today and found the image hilarious, but the concept really academically interesting. Would such a donation attempt actually hold water? Can a copyright holder effectively turn his/her IP over to the public domain this easily? What if you’ve registered with the US Copyright Office? Anyone wanna’ hazard a guess?

Credit to E. Roth for the idea and image. Oh, and click here if you want to download and create your own sticker for your driver’s license (also from Mr. Roth).

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering a licensing topic every week, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2008/02/27/ip-donation/feed/ 0 Holiday AND Intellectual Property related… how about that? http://www.licensinghandbook.com/2007/12/24/holiday-and-intellectual-property-related-how-about-that/ http://www.licensinghandbook.com/2007/12/24/holiday-and-intellectual-property-related-how-about-that/#comments Mon, 24 Dec 2007 18:58:55 +0000 Jeff http://licensinghandbook.com/?p=70 THIS is the reason there’s a parody exception in copyright law. (Never mind that most of the songs aren’t protected anymore.)

Happy Holidays!

]]> http://www.licensinghandbook.com/2007/12/24/holiday-and-intellectual-property-related-how-about-that/feed/ 0 Two-Top Tuesday http://www.licensinghandbook.com/2007/09/25/two-top-tuesday/ http://www.licensinghandbook.com/2007/09/25/two-top-tuesday/#comments Tue, 25 Sep 2007 13:55:00 +0000 Jeff http://licensinghandbook.com/?p=50 Thanks to Apple’s press release yesterday regarding iPhone unlocking tools and the iPhone’s warranty and license agreements, you get a special second-post (I’m also still feeling guilty about last week).

“CUPERTINO, Calif., Sept. 24 /PRNewswire-FirstCall/ — Apple has discovered that many of the unauthorized iPhone unlocking programs available on the Internet cause irreparable damage to the iPhone’s software, which will likely result in the modified iPhone becoming permanently inoperable when a future Apple-supplied iPhone software update is installed. Apple plans to release the next iPhone software update, containing many new features including the iTunes Wi-Fi Music Store (www.itunes.com), later this week. Apple strongly discourages users from installing unauthorized unlocking programs on their iPhones. Users who make unauthorized modifications to the software on their iPhone violate their iPhone software license agreement and void their warranty. The permanent inability to use an iPhone due to installing unlocking software is not covered under the iPhone’s warranty.”

This was the perfect opportunity to go read Apple’s iPhone license. At seven pages in 7-point font, it was a treat. Apple has taken the license to a state of one-sided nirvana (though I must admit that Apple isn’t the only vendor to have found Valhalla on this).

First the good news. There is no specific license prohibition on unlocking software. If a third-party application can unlock the iPhone without violating the terms of what most competent folks would consider a standard one-sided agreement, you’re still in the clear.

Now the bad news. As with almost any license, there are specific restrictions about reverse engineering, decompiling or otherwise taking things apart to figure out how they work. Based on the various announcements from places like Gizmodo and Engadget, it appears that the people developing these cracks are having to do at least SOME deconstruction. They, then, are violating the terms of the agreement. But if the unlocking software itself doesn’t decompile the iPhone software (and the end-user doesn’t have reason to suspect that the creator of the unlocking tool violated the terms of the license – which, unfortunately, most of them do as a result of the heavy-duty detailed articles in Giz and Engadget, among others), use of the tool by an unknowing end-user would not necessarily be a violation of the agreement.

There is also nothing in the agreement that will prevent Apple from releasing a product update that will “brick” (kill) an iPhone with unlock software on it.

But, if there is an unlocking tool that is 100% software, was created and runs like any other third-party application, Apple’s iPhone updates could still brick the iPhone, but use of the software wouldn’t be a violation of the agreement… and restoring the iPhone to its original state would be a simple fix – one which Apple should do under warranty.

As usual, though, there is another wrinkle. The DMCA (Digital Millennium Copyright Act) prevents circumvention of any copy-protection devices implemented (for an extreme situation, consider the Zune – which, even for music that you created from scratch still wraps with a copy restrictive time-bomb that you can’t disable, and is thus illegal to remove for your own self-created music). If the iPhone uses such device(s), avoiding them is a violation of the DMCA in addition to any pure copyright issues that would already exist. And each USE of the tool to do so would be another violation.

Overall, I make no recommendation here, but merely suggest, as with all licenses, that you understand the licenses you’re under so that you know what you can and cannot do.


The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering a licensing topic every Tuesday, I attempt to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2007/09/25/two-top-tuesday/feed/ 0 Copyright, the iPhone and You http://www.licensinghandbook.com/2007/09/11/copyright-the-iphone-and-you/ http://www.licensinghandbook.com/2007/09/11/copyright-the-iphone-and-you/#comments Tue, 11 Sep 2007 13:54:00 +0000 Jeff http://licensinghandbook.com/?p=47 The new iPods were released on Wednesday, along with a drop in the price of the iPhone – and Steve Jobs then announced a little tweak to allow an individual to “buy” a song solely for the creation of a custom ringtone. He was excited that you’d pay $.99 for the song and then $.99 to allow it to become a ringtone – still less expensive than most “premium ringtone” services. But during his presentation, he let loose a little slip that I haven’t heard mentioned on anyone else’s blog or on any news outlet. He said that the extra $.99 was for the rights to make the song into a ringtone.

Woah. Wait a minute. Don’t you already HAVE the rights to turn your music that you’ve purchased into ringtones? Let’s break down copyright just a little bit and find out.

There are six exclusive rights granted to the creator of a work. These six (reproduction, creation of derivative works, distribution, public performance, public display and the right to perform via digital audio transmission) can be granted to a “buyer” independently of any other rights and in fact, can be parceled even within one specific right.

This is why, when you “buy” a CD, you can listen to the song anywhere you can take the CD – and you can rip the songs from the CD to your computer/MP3 player. But it’s also the reason why you have to remove the songs from you computer/MP3 player if you ever sell the CD. You have a license to the songs – you didn’t actually buy the songs themselves (hence why this is important to us in the software realm).

But the deeper meaning of what Jobs said, without elaborating, is that the license you get from a downloaded song on iTunes is actually a more limited license than was originally considered by most consumers. Namely, that there is NOT included in the license the ability to make a ringtone. I disagree.

The only way this would be possible is if one of two things were happening. First, if you actually received notice when you were downloading the song that there was a more restrictive license in place; or second, if the ringtone is somehow going to be considered as a derivative work. As I’ve downloaded a few songs from iTunes, and actually read all of the license language that came with iTunes, I haven’t yet seen anything that would restrict my usage of a downloaded song. In fact, iTunes itself has a restrictor built right in – knowing full well that people won’t remember differences in licenses for each song – so it limits your ability to create a CD with a certain playlist more than a specific number of times.

That leaves derivative works. And I’m just not sure that a 30 second clip from a song – which hasn’t otherwise been altered, really constitutes a derivative work. I’ve never heard of someone playing a ringtone (mine happens to be a-ha’s “Take on Me”) that’s anything other than a clip from the song. If the 30-second clip WAS a derivative work (ie: was altered by the consumer in a way that made it a derivative), it would be problematic regardless of whether it was a ringtone or not. But taking a chunk of a song and playing it on your phone isn’t a derivative work – you are not required to play an entire song every time you hit the play button, and you can play your existing CD, for example, in your house, car, boat or portable player. Thus, Steve’s comments the other day don’t reflect the derivative work option.

In all, that means that you CAN create a ringtone from any song that you’ve already lawfully purchased/licensed. Apple and iTunes are making the recoding industry happy to charge extra for something that isn’t required to pay extra for (at the moment). This also lead to two possible ends to this story, both of which affect us in the software world:

1. Apple is just getting away with what the consumer population will let them charge. The average consumer doesn’t know the law – nor do they realize that they don’t actually have to pay to make a ringtone. They’re paying for the feature in iTunes to make one more easily. In the software world, this happens all the time, with vendors selling products based on “value” to the customer. Fuzzy math at best.

2. Apple is introducing a new licensing model for music – more restrictive than anything you’ve been exposed to in the past – licensed per consumer’s use (as opposed to commercial use, which is already restricted in this way). As consumers, we will either have to manually manage these different licenses, or technology will come up to “help” – but “help” is a misnomer, as I don’t want help with losing rights I already had.

As before, the software world feels this already and it’s just getting worse. License metrics are getting more and more restrictive – it’s now quite common to find double, triple and sometimes even quadruple license metric restrictions. Be careful what you agree to – as you’re setting precedent for what the industry will do to everyone else.


The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering a licensing topic every Tuesday, I attempt to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2007/09/11/copyright-the-iphone-and-you/feed/ 0 A Fair(y) Use Tale http://www.licensinghandbook.com/2007/08/24/a-fairy-use-tale/ http://www.licensinghandbook.com/2007/08/24/a-fairy-use-tale/#comments Fri, 24 Aug 2007 11:31:00 +0000 Jeff http://licensinghandbook.com/?p=43 In this special TGIF edition of the Licensinghandbook Blog, take 10 minutes out of your busy day to watch the following “Fair(y) Use Tale” by Eric Faden. If you’ve ever wondered about copyright law and the fair use exception, there aren’t many better ways to learn:


The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering a licensing topic every Tuesday, I attempt to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

]]> http://www.licensinghandbook.com/2007/08/24/a-fairy-use-tale/feed/ 0 Copyright reform http://www.licensinghandbook.com/2007/05/01/copyright-reform/ http://www.licensinghandbook.com/2007/05/01/copyright-reform/#comments Tue, 01 May 2007 23:52:00 +0000 Jeff http://licensinghandbook.com/?p=25 Jonathan Lethem would like to see a world where each artist can decide, at the time of their creation’s release, the rights their customers/fans/etc will have with respects to using, copying, recycling, etc that creation. As part of this, he’s going to release certain film rights and other derivative work rights to his next creation, You Don’t Love Me Yet.

He claims “The point is, it ought to be up to the artists.” And as the article on Wired states: “Listening to Lethem, one imagines a world where every artist crafts an idiosyncratic copyright notice, with its own strange rules, to adorn the front page or liner notes or gallery notice fronting her creations.”

What I find troubling about this push for copyright reform is that the “reform” that Jonathan (and others) are asking for already exists. The truth is that even since the beginning of copyright protection, the artist has ALWAYS had the ability to dispense of their given rights in any way in which they feel comfortable.

So, if you write a poem, craft a sculpture, paint a painting or make a movie, you can give away your rights in any form or fashion you choose. You want to allow people unlimited copying ability? You can. You want to restrict copying so that they have to BUY your work, but then they can create something new based on your work? You can. You want 100% restriction? You can do that, too. There’s nothing in the current copyright laws that would prevent anything that Jonathan is talking about wanting to do now.

In all, copyright doesn’t need reforming. Consumers (and artists) need education. Artists need to understand that if they use certain distribution organizations (publishers, printers, distributors, etc), they’re going to give up some of their rights to those organizations in exchange for the services those organizations provide. There are alternatives, of course. For publishing, there’s your own personal PC + Lulu (my favorite); for movies, again there’s your PC + YouTube.

But don’t claim that the current laws need to be changed. Know your rights. Use them.


The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering a licensing topic every Tuesday, I attempt to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

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