[free-sklyarov] Copyright as a restriction

[Jeme A Brelin]

On 24 Aug 2001, Stephen R. Savitzky wrote:
> Jeme A Brelin <jeme at brelin.net> writes:
> > Don't LICENSE your work.  Sell it, and you'll get exactly that and nothing
> > more or less.
> 
> IANAL, but I seem to remember that, strictly speaking, what one sells
> is the physical medium and not the copy.

No, you sell copies.  Microsoft claims that they're selling the physical
medium, but that the copy is licensed... and that's just so much mumbo
jumbo to restrict your obvious rights.

That's what that "first sale" doctrine is all about.  When I buy a copy, I
can resell that copy and do whatever I like with it (cut it up and
re-arrange the pages and sell it, or even word for word re-arranging and
slipping my own words in the margins).  First sale clearly shows that you
buy a copy.

> What a publisher buys from an author, for example, IS called a
> license.

A publisher doesn't BUY from the author, under normal circumstances.

A license isn't something you buy and sell.  It's a contract.  The
contract between an author and his publisher is called a license.  This is
a transfer of rights.  In that way, it's not unlike a driver's license or
a hunting license where rights (like driving or killing) exclusively
reserved for the public's agencies (government) for the protection of the
common good are transfered to you, an individual, in the form of a
license.

> And in some cases I want to pass on some rights to the purchaser that
> go beyond fair use -- again that requires a license. The GPL and BSD
> licenses are extreme cases of this -- they are needed because they go
> well beyond the standard licenses implied by copyright.

Actually, I'm pretty sure you don't need a formal license to confer some
of your exclusive rights reserved via copyright back to the public.

That is to say, if the party on the far end doesn't have to give up
anything more than the law demands, then you don't have to get their
consent.  That is to say, they don't have to agree to it, so it's not
really a license, per se.

As for authors and publishers, the author extends some of his exclusive
rights of use of a work to a publisher and the publisher remits money and
services.  This is a two-way street and both are party.

In commercial software, the publisher forces the user to give up some of
his non-exclusive rights of use of a work purchased and the publisher
doesn't have to give up anything at all.

You just want to reverse that.  You can do so with a statement that isn't
a license.

Something to the following tune:

I hereby allow the general public to make non-commercial use of my words
and music and share such use with their friends and community.  This
statement is not intended to relinquish any exclusive rights retained by
me, the author, with regard to commercial or mass distribution of more
than 100 copies.

Something like that.

But I'm not a lawyer, either.

> > I can't believe we've gotten so warped by the corporate licensing of the
> > past fifteen years that some people have actually forgotten that you can
> > SELL COPIES and not "license content" and still receive exclusive rights
> > from the public.
> 
> This is dead on.  The problem, however, is not limited to copyright:
> you can hardly buy *anything* these days without running across a
> limited warranty and a batch of warning stickers.  It's probably worst
> for software, though.

But you don't BUY software, these days.

Warnings and limited warranties are fine because they don't imply that you
must give up any of your rights and privileges guaranteed by the public as
a whole.

The problem arises when you must sign something or make some other public
acknowledgement that you're giving up your humanity for the sake of
commerce.

J.
-- 
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     Jeme A Brelin
    jeme at brelin.net
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