Re: implied license

From: Buford Terrell <terrell[_at_]gateway.stcl.edu>
Date: Mon, 19 May 1997 14:25:27 -0500

On 5/17/97, Steve Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> David Post <postd[_at_]erols.com> wrote:
> >
> > I've asked this before, but I'm not sure I've ever gotten a response
> > (maybe I should assume it's a stupid question?!). In all the discussion
> > of 'implied licenses' with respect to copying and display of Web page,
> > I've never seen a discussion of the methodology one would use (or a court
> > should use) to determine whether or not a license is in fact implied (and
> > what its scope might be). If you're the judge hearing the TN case, how
> > would you go about answering this question?
>
> First, I would learn the technology to see how it works. If the
> technology requires or is dramatically more effecient and useful with
> certain types of copying, I would tend to rule that anyone using that
> technology takes the technology as it is. Then I would see how users
> actually use it -how does the software work, what do users expect,
> what actually is happening. If "everyone" does it a certain way and
> expects it a certain way and the technology really works best or at
> least better that way, I would tend to find the implied license.
>
> As to scope: harder question involving the factors noted above and
> balancing policies of wide dissemination and IP protection - public
> policy issues as to where to draw the line and technological issues
> as to what lines may make sense as practicable and workable.
>
> To vague maybe? I suppose I would need the real case to sharpen it -
> and critique from the experts on this list.

I will repeat Steve's "look at the technology". A client sends a request to a server: "Give me a copy of foo.html. I am an IE at nowhere.tdl." The server then squits out a copy of foo.html and the transaction is complete at that point. I would say that ,at the very least, the server has licensed the requester to do basic browser things: put it in local cache, display on screen according to the kind of browser and optional settings, including the use of frames, bookmark, click on any indicated links, use the "back" and "go" buttons to return to the site later. Because virtually any browser can do these things, any implied license would have to include them. Custom and widespread useage may, over time, make the license even broader.

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Buford C. Terrell                           CAUTION:
Professor of Law                            Objects in your
South Texas College of Law                  future
1303 San Jacinto                            are closer than
Houston, Texas 77002                        they appear!

(713)646-1857
terrell[_at_]stcl.edu Received on Mon May 19 1997 - 19:26:52 GMT