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Re: Scope-of-use

From: Alexander Terekhov
Subject: Re: Scope-of-use
Date: Fri, 25 Jan 2008 21:08:29 +0100

<Forward Inline>

from Lawrence Rosen <>

date Jan 25, 2008 8:32 PM
subject RE: (OT) - NOT A Major Blow to Copyleft Theory

There is no need to send these emails directly to me. I'm on license-discuss
already and I'll get copies of your emails automatically. 

If you were trying to tempt me to respond directly to your emails, I'd
rather not. Instead, I suggest that you reread the amicus brief filed by
Creative Commons and many friends. [1] This brief makes excellent arguments
that deserve to be addressed by the courts. Your citing to 1926 precedents,
while in some sense interesting for those of us lawyers who enjoy reading
Supreme Court decisions, is not likely to get the participants of this
discussion list to fully appreciate the issues raised by the Jacobsen case.

One more thing: The subject of these emails, "Major Blow to Copyleft
Theory", is itself a gross exaggeration. I hope you won't assume the
inflammatory subject will sway hearts and minds here. It certainly hasn't
swayed mine.




Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: Alexander Terekhov []
> Sent: Friday, January 25, 2008 10:42 AM
> To:
> Cc:
> Subject: Re: (OT) - Major Blow to Copyleft Theory
> FYI:
> <quote>
> 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
> license.
> 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 is 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.
> Regards,
> Rjack :)
> </quote>
> Well. We'll see. :-) :-)
> regards,
> alexander.
> --
> "Because of their informal and diffuse nature, open source groups are
> vulnerable to theft of their intellectual property. That theft, in the
> form of copyright infringement, happened in this case, and Jacobsen
> sought a preliminary injunction to enjoin Katzer and KAMIND's
> infringement."

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