Fwd: CNI-COPYRIGHT Digest #2106

People contract all the time to limit rights they would otherwise have under copyright law.

For instance, a software licensor might give its licensee a copy of the source code for use in modifying the licensed software, subject to the licensee's agreement to keep the source code strictly confidential -- i.e., not to exercise its right to sell or give away its copy, quote portions that might otherwise be permissible as fair use or even repeat the ideas (as opposed to the expression) expressed by the source code.

To take another example, book publishing contracts will sometimes include a promise by the publisher not to remainder the book until some period of time has passed after publication -- i.e., not to exercise its right to make certain types of sales of copies of the book that it owns.

A bookstore that borrows money from a bank might covenant (assuming an unsecured loan) not to sell its inventory outside the ordinary course of business -- i.e., again not to exercise the right it has under copyright law to sell copies of books that it owns.

Does anyone think that copyright law makes those promises unenforceable? I've never seen any case law saying so.

• Paul Sleven

Begin forwarded message:

> Date: Fri, 22 Aug 2003 12:17:56 -0400
> Message-ID: <redirect-877662[_at_]cni.org>
> Subject: [CNI-(C)] Re: complementary copies of text books
> From: Brock Shinen <brock[_at_]frenzellaw.com>
>
> I'm curious - Section 109 of the US Copyright Act allows an owner of a
> particular copy of something to give it away. If a publisher and a
> professor
> agree (let's assume they actually agreed - otherwise we'll get into a
> whole
> new discussion on whether "complementary copy, not for resale" actually
> forms a contract), would this be enforceable, since it circumvents
> copyright
> law? Or, is this one aspect of copyright ownership which can be held
> by the
> owner? My guess is that since it's an exception to the exclusive
> rights of
> an owner, then it is not a right at all, e.g., you can't agree to
> prevent
> someone from giving it away.
Received on Mon Aug 25 2003 - 19:15:02 GMT