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From: rjack
Subject: Scope-of-use
Date: Fri, 25 Jan 2008 13:30:17 -0500
User-agent: Thunderbird (Windows/20071031)

One thing that continues to confuse people including so-called
"free software lawyers" is the difference between a "scope of
use" restriction term and a contract covenant term in a copyright

Historically, the concept of "scope of use" restrictions stems
from a line of patent decisions by the Supreme Court. This is
exemplified in a decision by the Supreme Court in 1926.

"The owner of a patent may assign it to another and convey (1) the exclusive right to make, use, and vend the invention throughout the United States; or (2) an undivided part or share of that exclusive right; or (3) the exclusive right under the patent within and through a specific part of the United States. . . . Conveying less than title to the patent or part of it, the patentee may grant a license to make, use, and vend articles under the specifications of his patent for any royalty, or upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent I entitled to secure."; United States v. General Electric Co., 272 U.S.
476 (1926).

The crucial idea is that the restriction must remain within the scope of the enumerated right: "[Is] reasonably within the reward which the patentee by the grant of the patent is entitled to secure." (supra).

Remember the Jacobsen Artistic License decision?

Judge White correctly ruled that "[t]he condition that the user
insert a prominent notice of attribution does not limit the scope of the license". Title 17 U.S.C. sec. 106 of the Copyright Act doesn't speak to an exclusive right of "attribution".

Some common field of use restrictions are:
1) a specified technology field or product field
2) a geographical area
3) a time limitation
4) commercial or non-commercial use
5) limitations on number of units produced or distributed

One of the problems for open source scope-of-use restrictions is the fact that *every* decision by the Supreme Court concerning scope-of-use restrictions has been made in the context of preserving the *value* of the intellectual property in the *marketplace* -- a very "capitalist" (contrast: "socialist') motivation. Scope-of-use restrictions meant for egotistical or ideological purposes are going to be met with (muted)
hostility by federal judges.

Rjack :)

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