Re: Business Software Alliance

On 1/15/00, John R. Levine <johnl[_at_]iecc.com> wrote:
>
> On Thu, 13 Jan 2000, John Noble <jnoble[_at_]dgsys.com> wrote:
> >
> > On 12 Jan 2000, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
> > >
> > > That should read "[software] is purported to be licensed rather
> > > than sold". Whether it is or not will be a matter for the USC to
> > > decide, as it involves Constitutional issues.
> >
> > I'm having a hard time identifying the constitutional issue here.
> > Why do you think that the characterization of a transaction as
> > license vs. sale is anything other than a state law issue.
>
> Because the license looks to a lot of people (including me) like an
> attempt to make an end run around the Copyright clause, particularly
> to deny the purchaser his fair use rights under copyright law, and to
> subvert the first sale principle.

I understand your point, but the end run is around the Copyright Act, not the Copyright clause. Should Congress exercise its Copyright clause authority to regulate license terms that purport to limit fair use or first sale rights, then we'd have a constitutional issue, and a fairly simple one, under the Supremacy clause. But I don't think you can find a constitutional hook for challenging the characterization of a transaction as a license rather than a sale. Even staking out the claim under current law, the "constitutional" issue whether the Copyright Act preempts enforcement of the fair use or first sale restrictions in the license, not whether the transaction is a license or sale. In other words the constitution might have something to say about the consequences of characterizing the transaction as a license or sale, but it doesn't have anything to say about the threshold issue identified by Lynn: whether the software is licensed or sold.

John Noble
<jnoble[_at_]dgsys.com> Received on Mon Jan 17 2000 - 23:28:17 GMT