Re: [d@DCC] B.2.3 Contractual limitations on exceptions and uses

From: "tOM Trottier" <Tom _-at-_ Abacurial.com>
To: General Copyright Discussions <discuss (at) digital-copyright.ca>
Date: Sat, 18 Oct 2003 12:28:50 -0400

Some notes:

1. I think you mean in your recommendation that licenses should not preclude 
copyrighted works entering the public domain or being backed up. I suggest you 
specify those rights that you think licenses may take away, and use some 
examples of license language. 

2. Just because the manufacturer owns the copyright doesn't mean she doesn't 
have other rights in the product as well. You need to argue on the basis of 
public policy - is it good for the country. 

2. Reverse engineering analysis is usually forbidden by licenses on packages. 
Patents exist to spread knowledge while retaining rights. Copyright does not 
forbid analysis. To advance the art, reverse engineering of software should be 
a right protected by the Copyright act. 

3. Some packages state that the complete license is inside and if it is not 
acceptable when read, the package may be returned for a full refund. However, 
most retailers refuse to refund for opened software packages.

4. Most software makers refuse to guarantee their software works correctly and 
refuse to accept responsibility if it doesn't. This is unacceptable in a 
consumer product. When a product advertises certain capabilities, the seller 
should be responsible for the capabilities working properly.

tOM

On Friday, October 17, 2003 at 16:20
Russell McOrmond <discuss@digital-copyright.ca> wrote:

>   This is an area that I have thought about, but need to check my thinking
> with some of the other folks in this list.  This is part of my Heritage
> Cmtee submission which is hopefully not too late to modify if I get
> feedback suggesting I'm headed in the wrong direction.  It is one thing to
> know what I am trying to suggest, but entirely a different matter to
> suggest it in a way that is compatable with how laws are interpreted.
> 
> http://www.flora.ca/copyright2003/section92.html#B23
> 
> B.2.3 Contractual limitations on exceptions and uses
> 
> Far too many contractual agreements are of a complexity that the average 
> layperson is not able to understand what they are agreeing to. When it 
> comes to software "shrink-wrap" licenses, very few people even read the 
> agreements to determine what rights they may be waiving.
> 
> One solution for citizens is to try to choose methodologies such as FLOSS 
> where a large number of programs use the same license agreements rather 
> than "software manufacturing" where often different versions or different 
> customers of the same program are under different agreements.
> 
> Generally, however, we need to move away from thinking of Patents, 
> Copyright or Trademarks as a form of property. What is owned by a 
> copyright holder is not an idea or even an expression of their work, but 
> very specific limited exclusive rights set out by the copyright act. It 
> should not be possible to have a contractual license agreement that takes 
> rights away from the user of a work under copyright that relate to an 
> exclusive right which the copyright holder did not have in the first 
> place. Where there is an exception to copyright is an example of an 
> exclusive right that a copyright holder does not have, and thus is not a 
> right that should be negotiable under contract law.
> 
> Recommendation: The act should clarify that exclusive rights that are not 
> offered under the copyright act should not negotiable under copyright 
> license agreements.
> 
> ---
>  Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
>  Governance software that controls ICT, automates government policy, or
>  electronically counts votes, shouldn't be bought any more than 
>  politicians should be bought.  -- http://www.flora.ca/russell/
> 
> --
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> 
> 


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