Re: implied license

Steven D. 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.

I start the implied license analysis from what is reasonably expected by the parties. If you use a technology where something invariably happens, such as certain copies being made, then you have probably impliedly licensed the making of the copies.

The legal basis for this is in basic contract law, in particular meeting of the minds, and mistake. In particular, when a mistake of fact is made as to something, on how the question is resolved. And the answer is usually in favor of the party acting rationally, and against the party not acting so.

> To vague maybe? I suppose I would need the real case to sharpen it -
> and critique from the experts on this list.

Good point.

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1997 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com