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October 3, 2004
Click Here to Allow Unlawful Restraint of Trade
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John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public's side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker:
When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.
In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.
A travesty, and one that must be appealed.
Speaking of limitations on copyright,
Derek Slater brings news that fellow
Berkman-ite Dotan Oliar has written a
new paper (PDF) on the roots of the Copyright Clause, revealing that (surprise) "promote the progress of science and useful arts" does indeed represent a limit to Congress's power to grant intellectual property rights. Which means, of course, that the courts ought to enforce this limitation. According to Dotan, this requires that we develop a "concept of progress for the Clause" -- and he explores several ways that the courts could do so.
Sounds fascinating. Thanks, Derek.
Comments (1)
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1. Joseph Pietro Riolo on October 5, 2004 6:32 PM writes...
Before we start to criticize the BNetD decision, we need
to keep in mind that the legal principles used in the
court decision are the same ones that make GPL and open
licenses possible. If you think that court decision is
wrong, you also must admit that some parts of GPL and open
licenses could be wrong. GPL does things that are outside
of the scope of the copyright law. For example, GPL does
not allow you to do certain things that are allowed by the
fair use in the copyright law (i.e., the fair use allows
you to copy a small portion of program and use it in
your program and distribute your program without the need
to include the terms and conditions of GPL in your program).
Don't be too harsh on the BNetD decision. You may find that
you need the same legal principles to validate and enforce
your own more friendly, less restrictive licenses.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
Permalink to Commentin this comment in the public domain.