Re: "Thumbnails" of scanned pages from c

>>Dennis S. Karjala wrote:
>>>
>>> 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?

It seems to me that this analysis threatens a whole body of licensing law. Unless I misunderstand the breadth of your position, you would invalidate thousands, if not hundreds of thousands, of license agreements, shrinkwrap or not, which purport to alter/supplement the rights set forth in the Copyright Act. As I understand it, software for client-server and mainframe systems is almost always licensed with restrictions on use for the benefit of third parties, or with payment schedules which depend on the level of usage or capacity of the hardware on which they are installed. These provisions would seemingly be inconsistent with first sale and sec. 117 rights. The license provisions reserve to the copyright holder a right to control "use" of the copyrighted work -- a right which the Copyright Act doesn't grant under 106. Do you really mean to suggest that copyright owners should not be allowed to license their works if it would deprive customers of the rights attending ownership of an authorized copy? Is every license agreement invalid to the extent it does not simply incorporate the rights of ownership under the Copyright Act?

I understand the argument that shrinkwrap licenses are or may be invalid as contracts of adhesion, though I think that people mistakenly believe that any unilateral contract imposed without opportunity for bargaining is perforce invalid. But your position seems to be much more radical. You are contending, aren't you, that I, the customer, cannot opt for the fewer/more limited rights of a licensee at a price presumably less than I would have to pay for the rights attending ownership under the Copyright Act, because that is all that the copyright owner is permitted to sell.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Thu Oct 26 1995 - 10:54:29 GMT