Re: "Thumbnails" of scanned pages from c

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Mon, 23 Oct 1995 08:16:10 -0600

Dennis S. Karjala says:
>
> I simply reiterate the view that it shouldn't make any difference
> whether the conditions of the shrinkwrap license are brought to the
> attention of the purchaser. The copyright balances are drawn for the
> benefit of society as a whole. As to published works, we cannot allow
> a formal "contract" device to override the policies underlying the
> idea/expression distinction, the first-sale doctrine, fair use, and the
> many other limitations on copyright owners' rights. If we could, and
> assuming a similar device could be used for functional works (the
> subject matter of patent), both copyright and patent law would become
> mere matters of contract. Is that all Congress thought it was doing in
> debating the 1976 Act for 20 years?

One reason that I disagree with your analysis is that in my mind, the real impact of shrinkwrap terms go way beyond copyright - indeed, the affect on copyright is neglible given everything else going on:

• prohibitions on reverse engineering - and thus potentially opening someone up to trade secret actions for figuring out how mass marketed software works (this appears to be part of the basis for the award of trade secret damages to MS against Stac).
• waiver of any meaninful warranties

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The preceding was not a legal opinion, and may not be my employers'. Orignal portions Copyright 1995 Bruce E. Hayden,All Rights Reserved. My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                                bhayden[_at_]acm.org               
Austin, Texas                                  bhayden[_at_]copatlaw.com

Received on Mon Oct 23 1995 - 13:26:18 GMT