For the benefit of new readers: while this site evangelises the abolition of copyright, it does promote IP naturalism, i.e. the recognition of intellectual property as a natural right. So, it remains important that the law is coherent when it comes to distinguishing between sale of IP and its rental (or other contracted use).
Completely independent from the issue of the monopoly that is copyright, there is the issue of what happens when IP is retailed.
Surprisingly, whilst one would expect that when a copy was retailed, the copy was sold and that the purchaser could do anything with their copy not proscribed by copyright, there are some who believe that the copyright holder can stipulate in the licence, terms that additionally prevent sale of copies or constrain their use.
Now it is indeed quite possible for a licence to prohibit sale, but only by the licensee. Moreover, a licensee can only become a licensee voluntarily. They can’t become one simply by coming into possession of a copy (even by purchase or gift).
So, if you walk into a shop and purchase a CD, any licence attached to it can be ignored unless you would like to benefit from it.
It is possible that retailers may willingly volunteer to become licensees of the copyrighted works that they would sell copies of, and consequently become unable to sell copies if the licences so stipulate. However, this doesn’t permit the retailers to misrepresent exchange of copies for money as sales instead of rental.
Let us consider the situation where a retailer has not become a licensee or otherwise contracted themselves out of the ability to retail authorised copies of copyrighted works. Let’s use audio CDs as an example.
The Deal
There are only two possible deals the retailer can present to their customers:
- Purchase/receipt of what is clearly a CD. Somewhere inside the CD case may be a little piece of paper on which is written “Special offer – you can obtain a few more exciting privileges if you sign and return the attached contract that signifies your consent to accept certain conditions and restrictions in exchange”
- Purchase/receipt of what is clearly a voucher/contract. “This voucher, when countersigned by you to indicate acceptance of its terms, entitles you to the indefinite use of a CD that we will loan to you.”
Sometimes 2 is distorted into something very similar to 1. A disposable CD in a brown envelope is affixed to the voucher, e.g. “Not to be opened until voucher is signed”. It then becomes a conventional CD case and a little piece of paper on which is written “The CD to which this voucher is attached must be returned unless you sign this voucher agreeing to terms and conditions that restrict your use of the CD – in all cases the CD remains the property of XYZ Corp.”
The critical issue is this: is the sale of a voucher being misrepresented as the sale of a CD? If so, the voucher must be void, and it is a sale of a CD.
Better still, legitimate possession of a CD whether provided on indefinite loan or on sale, cannot bind the recipient.
The Licence
Unfortunately, some people believe that even when a copy appears to be retailed, its licence can abrogate the sale the customer might assume had occurred. This is, of course, complete codswallop.
- Firstly, the licence can only apply to purchasers or other owners of the copy. It cannot reach out like some spectral robber baron to coerce passers by as subject to its constraints (even if it appears to bestow liberties in exchange).
- Secondly, the licence cannot demonstrate consent by its victim to be so bound by specifying that should the victim perform an action they are inclined and free to do anyway (even if only authorised by licence) they are therefore signifying acceptance of the licence to mutate into an agreed contract.
- Thirdly, a licence is a ‘licence’. For it to start off as a contract it would have to term itself a ‘contract’ (deposit-paid), and the accompanying contingent good clearly marked as such (subject to contract).
- Fourthly, a licence is a copyright holder’s moderation of the privileges they’ve received via copyright. It does not empower the copyright holder to create their own legislation governing use and sale of copies of their work.
So, the moment before a licence can have any significance, we must have an owner of the copy (to which the licence is affixed). The owner of the copy can ignore the licence (possibly, even in ignorance, benefitting from liberties unilaterally provided by the licence), or they can choose to observe the terms and conditions of the licence as a potential contract in exchange for benefits, or they can consummate the licence’s mutation into a contract by explicit and special agreement (performing an action that could have no other purpose than to express voluntary agreement).
However, none of this is to say that someone cannot agree to a contract in order to use or come into possession of a copy that they do not own, and have no property rights to. In such a case, the contractee is subject to the terms of the contract (which, without authorisation from the copyright holder, cannot violate copyright, or the licence of the copyrighted work – if valid), and cannot otherwise benefit from, or be bound by, any affixed licence.
The Conclusion
If everything leads you to believe you are buying an authorised copy of a copyrighted work, there are only two possibilities:
- You have exchanged money for a copy that the seller was not authorised to sell to you.
- You have bought a copy and can ignore the licence if you want – no-matter whether you’ve removed the cellophane, read the licence, or clicked on some whacky button that says “I agree to accept this licence as a binding contract in order to obtain less use of the copy I thought I’d just paid for and was already my own property.”
It doesn’t even matter if you make a backup copy. Nothing on earth can be considered to obtain your voluntary agreement if it holds your own property hostage.
Even if a licence suggests that you are likely to wish to infringe copyright in ways that only the licence can authorise, it doesn’t matter. You always have a choice of committing copyright infringement or accepting the licence (whilst you remain an owner of the copy).
So, this means that yes, you can click all the unavoidable “I agree” check boxes on all the copyright licenses that pop up upon copies of software you’ve purchased without that actually constituting agreement.
- If you don’t own the copy, you can’t be a licensee and cannot be directly bound by any licence to it.
- If you do own the copy, any licence to it must be optional. If it appears not to be optional, it cannot obtain your voluntary agreement.
Without Copyright
Without copyright, there are no licences. Either you have rented a copy (subject to voluntarily agreed contract) or you have purchased a copy.
There is no copyright to suspend any of your IP rights for the benefit of the privileged copyright holder who can then licence them back to you.
It is, of course, still possible to exchange money for a copy that the seller was not authorised to sell to you (a rented copy).
However, if you own the copy you have purchased, then given no copyright, you enjoy all your intellectual property rights.
And in case it still isn’t clear, ‘optional’ does not mean optional as in “Either you take out our insurance policy or a brick is likely to come through your window”.
Optional means that nothing is contingent upon acceptance of the licence except the permissions granted by the licence and the conditions observed by the licensee.
Nothing can be provided on the CD that you are not authorised to receive by dint of the original purchase. Nothing can be included on condition that the purchaser accepts a contract post-purchase.
Certainly many CDs are produced where the publishers pretend to be able to do this, but that doesn’t actually constitute legislative fait accompli.
Comment #000124 at
2007-08-23 15:27
by
Crosbie Fitch
I was just wondering whether these IPs can be sold or licensed just like companies does at design-reuse.com designwin.net or www.IPsupermarket.com
does?
Comment #000183 at
2008-06-04 06:02
by
John
Today, IP in the form of software can effectively be rented because the contracting recipient is otherwise prohibited from manufacturing copies or derivatives and must return the IP they’ve received at the end of the rental (destroying/returning any incidental authorised copies). However, bear in mind that they though they may be required to relinquish copies. They cannot and do not need to return the knowledge. In the case of software patents, that still prevents them utilising their knowledge to build patented mechanisms.
I say ‘prevent’, but the effectiveness of this prevention is pretty limited and enforcement can be expensive (necessarily requiring invasive audits to ensure no copies remain after the rental period).
Without copyright or patent, IP cannot be rented. IP is either communicated with permission or it is communicated without. There can be no ‘communication for a limited period’ or voluntarily reversible communication. One may be made privy to developments (being communicated to IP available during this period) and one may cease being privy, but such cessation doesn’t reverse communication, it merely ceases further communication of developments. If one has received a communication of IP without permission, then in such special cases one should be obliged to reverse the communication as far as is possible, but this cannot warrant a strict audit to remove incidental copies.
One could simulate rental by requiring a conditional ‘publicity damage’ deposit that was only refunded on a much later date if an embargo of the IP one was made privy to during the rental period was observed. However, unless one was paying a regular fee to remain privy to developments, one would only rent such IP for a day and observe the embargo.
Comment #000184 at
2008-06-04 17:47
by
Crosbie Fitch
Completely independent from the issue of the monopoly that is copyright, there is the issue of what happens when IP is retailed.
Surprisingly, whilst one would expect that when a copy was retailed, the copy was sold and that the purchaser could do anything with their copy not proscribed by copyright, there are some who believe that the copyright holder can stipulate in the licence, terms that additionally prevent sale of copies or constrain their use.
Now it is indeed quite possible for a licence to prohibit sale, but only by the licensee. Moreover, a licensee can only become a licensee voluntarily. They can’t become one simply by coming into possession of a copy (even by purchase or gift).
So, if you walk into a shop and purchase a CD, any licence attached to it can be ignored unless you would like to benefit from it.
It is possible that retailers may willingly volunteer to become licensees of the copyrighted works that they would sell copies of, and consequently become unable to sell copies if the licences so stipulate. However, this doesn’t permit the retailers to misrepresent exchange of copies for money as sales instead of rental.
Let us consider the situation where a retailer has not become a licensee or otherwise contracted themselves out of the ability to retail authorised copies of copyrighted works. Let’s use audio CDs as an example.
The Deal
There are only two possible deals the retailer can present to their customers:
Sometimes 2 is distorted into something very similar to 1. A disposable CD in a brown envelope is affixed to the voucher, e.g. “Not to be opened until voucher is signed”. It then becomes a conventional CD case and a little piece of paper on which is written “The CD to which this voucher is attached must be returned unless you sign this voucher agreeing to terms and conditions that restrict your use of the CD – in all cases the CD remains the property of XYZ Corp.”
The critical issue is this: is the sale of a voucher being misrepresented as the sale of a CD? If so, the voucher must be void, and it is a sale of a CD.
Better still, legitimate possession of a CD whether provided on indefinite loan or on sale, cannot bind the recipient.
The Licence
Unfortunately, some people believe that even when a copy appears to be retailed, its licence can abrogate the sale the customer might assume had occurred. This is, of course, complete codswallop.
So, the moment before a licence can have any significance, we must have an owner of the copy (to which the licence is affixed). The owner of the copy can ignore the licence (possibly, even in ignorance, benefitting from liberties unilaterally provided by the licence), or they can choose to observe the terms and conditions of the licence as a potential contract in exchange for benefits, or they can consummate the licence’s mutation into a contract by explicit and special agreement (performing an action that could have no other purpose than to express voluntary agreement).
However, none of this is to say that someone cannot agree to a contract in order to use or come into possession of a copy that they do not own, and have no property rights to. In such a case, the contractee is subject to the terms of the contract (which, without authorisation from the copyright holder, cannot violate copyright, or the licence of the copyrighted work – if valid), and cannot otherwise benefit from, or be bound by, any affixed licence.
The Conclusion
If everything leads you to believe you are buying an authorised copy of a copyrighted work, there are only two possibilities:
It doesn’t even matter if you make a backup copy. Nothing on earth can be considered to obtain your voluntary agreement if it holds your own property hostage.
Even if a licence suggests that you are likely to wish to infringe copyright in ways that only the licence can authorise, it doesn’t matter. You always have a choice of committing copyright infringement or accepting the licence (whilst you remain an owner of the copy).
So, this means that yes, you can click all the unavoidable “I agree” check boxes on all the copyright licenses that pop up upon copies of software you’ve purchased without that actually constituting agreement.
Without Copyright
Without copyright, there are no licences. Either you have rented a copy (subject to voluntarily agreed contract) or you have purchased a copy.
There is no copyright to suspend any of your IP rights for the benefit of the privileged copyright holder who can then licence them back to you.
It is, of course, still possible to exchange money for a copy that the seller was not authorised to sell to you (a rented copy).
However, if you own the copy you have purchased, then given no copyright, you enjoy all your intellectual property rights.