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License Scope

From: rjack
Subject: License Scope
Date: Sat, 22 Dec 2007 09:24:12 -0500
User-agent: Thunderbird (Windows/20071031)

It is unsettling to observe the number of lawyers who do not understand the difference between a contractual covenant and a restriction on the “scope of permitted use” when analyzing a copyright license. Here’s an example:

“However, in this case, the court found that the condition to include a proper notice was not a restriction on the scope of the license and, thus, Katzen was not liable for copyright infringement. The court then denied the injunction. The court did not provide an analysis of why it reached this conclusion. I believe that this decision is simply wrong. The use of the term "condition" in the Artistic License should mean that the terms imposed are restrictions on the scope of the license.”

In order for any language in a copyright license to constitute a “scope of use” restriction, the language must place an authorization restriction on one or more of the exclusive rights:

“In light of their facts, those cases thus stand for the entirely unremarkable principle that “uses” that violate a license agreement constitute copyright infringement only when those uses would infringe in the absence of any license agreement at all.”; Storage Technology Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).

Where in 17 USC sec. 106 is it mentioned that there exits an exclusive right to require a copyright notice be included while distributing a work? Likewise, where in 17 USC sec. 106 is it stated that an
exclusive right exists to compel publication of source code?.


-- "Standing involves two distinct inquiries. First, an Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the "case or controversy" requirement of Article III. . . Second, if a plaintiff has suffered sufficient injury to satisfy Article III, a federal court must ask whether a statute has conferred "standing" on that plaintiff."; Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) --

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