[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: CAFC 2008-1001 -- "license to the world must be a bare license" case

From: rjack
Subject: Re: CAFC 2008-1001 -- "license to the world must be a bare license" case
Date: Wed, 23 Jan 2008 14:07:47 -0500
User-agent: Thunderbird (Windows/20071031)

Alexander Terekhov wrote:

The Appellant’s Brief complains that the district court construed the Artistic license broadly:

“The district court briefly discussed S.O.S., Inc v. Payday, Inc., 886 F.2d 1081 (9th Cir. 1989) and the scope of the license grant, but did not address an important aspect of the S.O.S. decision – that a court must construe a license narrowly to protect the rights of the copyright holder. A10. Instead, the district court interpreted the license broadly.”

Here is what the Ninth Circuit said about its decision in S.O.S.
v. Payday Inc. ten years later in SUN MICROSYSTEMS v MICROSOFT 188 F.3d 1115 (9th Cir. 1999):

“The determination of whether the compatibility terms in the
TLDA are covenants or limitations on the scope of the license
is likewise a contractual issue, for it requires us to construe
the license. We recognized this in S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081 (9th Cir. 1989). In S.O.S., the plaintiff, which
held a copyright in a computer program, had granted the
defendant a license to "use" the software and had explicitly
reserved all other rights. The plaintiff claimed that by modify-
ing the software the defendant had exceeded the scope of the
license and therefore infringed the copyright. The district
court, using California contract law to construe the license,
applied the rule that contracts should be construed against the
drafter and held that the license therefore permitted any uses
not explicitly forbidden. On appeal, we agreed that we should
"rely on state law to provide the canons of contractual
construction" provided that ‘such rules do not interfere with
federal copyright law or policy.’ Id. at 1088.”

The facts concerning the Artistic License are very different from
the two party *negotiated* contracts in the S.O.S., Inc. and Sun Microsystems cases. “Negotiation” is fundamental to the concept of
“freedom to contract”.

The Artistic License is a public contract of adhesion (a take-it-or-leave-it offer). The license is offered to literally millions of people in the general public. None of those millions of potential parties had an opportunity to discuss how the license terms are to be construed. The courts have ruled many of these contracts as “enforceable” but how they are interpreted is a broad and open question left to state law in fifty different jurisdictions.

Consider the reasoning of the South Carolina Supreme Court in this contract decision:

“Generally, if the terms of a contract are clear and unambiguous, this Court must enforce the contract according to its terms regardless of its wisdom or folly. Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994). Ambiguous language in a contract, however, should be construed liberally and interpreted strongly in favor of the non-drafting party. Myrtle Beach Lumber Co., Inc. v. Willoughby, 276 S.C. 3, 274 S.E.2d 423 (1981). After all, the drafting party has the greater opportunity to prevent mistakes in meaning. It is responsible for any ambiguity and should be the one to suffer from its shortcomings.”; Green Tree Financial Corp. v. Lackey, Buggs, and Buggs, Opinion No. 25523 (2002).

The drafters of open source license such as the Perl Artistic License (or GPL) often draw up murky, legally dubious contracts and then make outrageous claims as to how the license terms are to be construed.

Rjack J

--- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals for the Seventh Circuit 2006) ---

reply via email to

[Prev in Thread] Current Thread [Next in Thread]