At a rummage sale a few years ago, I bought a book published by Disney in the 1960s or 1970s which had instructions on how to make Mickey Mouse puppets. It also said to "have fun" making them. Selling things for a profit is a lot of fun.
As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.
Well-developed (highly-litigated) areas of law don't work this way.
A phrase in children's book is unlikely to be considered sufficient evidence that Disney has conveyed an unlimited license to sell Mickey puppets.
At best, the language might protect an unsophisticated infringer from having to pay statutory damages or Disney's legal fees. For example, if a naive person (non-lawyer, non-business person) sold a few of the infringing puppets on Etsy, Disney would drop it (or a court would force Disney to drop the case, if needed) as long as the infringer promises to stop infringing.
In contrast, a sophisticated infringer would be hung out to dry. Because sophisticated infringers cannot credibly suggest that they believe Disney has conveyed an unlimited right to make and sell Mickey puppets based on a phrase included in a children's book.
Note, the words of a license or contract (including signatures if present) are taken as providing some amount of evidence of a license or contract. Contract docs memorialize an agreement between parties to enter into a contract. Formality requirements depend on the stakes, tradition, sophistication of the parties, etc. Most of this can vary widely depending on the industry or type of contract. Plus, in many cases, other statutes or regulations may come into play depending on the subject matter, type of agreement, duration of agreement, jurisdiction, and so on.
Here, since conventional language or formalities that Disney normally uses when licensing its IP is absent, a court is likely to find no license grant or contract.
Couldn't you show that they're willing to enter into a contract by hash tag, therefor they're pretty flexible on how they enter contracts. Or is it only the unconscionable ones?
What about parody? South park made fun of Mickey mouse a few times and they didn't change his name. Say I make a cartoon crackhead mickey where he's on the pipe and bangs hookers. Then I want to release a toy of my parody. Im joking but I don't think anyone has ever released toys of parody. Parody is under fair us,would that also extend to merchandise stemming from the parody?
How do we determine who's sophisticated? Sure, it might be one of those "I know it when I see it" things, but is there a legal process to determine that someone is enough of a moron that the law can cut them some slack?
Again, such a signature is going to provide no support for a claim that Disney is providing a license to sell homemade Mickey puppets. Especially if the signature is automatically included on most or all of Disney products.
In contract law, signatures on a document memorializing a contract provide (often fairly strong) evidence that the signing parties have agreed to the contract.
This reminds me of a book called "numerical recipes in C", full of algorithms that were very useful except you couldn't really use them because the authors protected their use with a very restrictive license.
You could use the algorithms, just not their implementation of the algorithms. If you rewrote it from scratch, following their text (not their source code), you were fully allowed to use it.
I'm curious how this works in the case of reinvention. Some algorithms are so simple that there is basically one canonical way of writing it. I'm assuming copyright doesn't cover the independent implementation in such cases?
it would be an invalid patent (or at least should be), because
1. There is prior art
2. it is obvious to a domain expert
But given the US patent office's track record, I wouldn't be too surprised if you were able to get a patent. Just don't expect it to hold up in court.
Patents on software are not that simple - it needs to describe an entire physical system that gives value to a user, not just an abstract function that does computation.
I started out a project by copying RK4 verbatim. Over several months it morphed and took on a life of its own as I integrated it into other parts of the program and smoothed out the inefficiencies. At what point does it stop being a derivative work I wonder?
Never. Derivation is not a property which can be "lost". Deriving more things through the process of derivation at not point stops the derivation connection.
You should not include code at any point if you do not have the proper license for it. The copyright pollution spreads and any attempt to "clean room it" would be more expensive than re-writing from scratch.
You can only copyright the text of the source code, as if it was literature. Write your own source code to implement the same algorithm using the same efficient techniques, and you're fine (as long as it isn't patented.)
As mentioned above, some algorithms are so simple that there's only one canonical way to write them. (Take 'looping through an array' for example - in each language there's generally one canonical way to do it.) You could argue that the text of that canonical way is copyrightable.
(It's similar to the early days of heat engines, where a guy called James Pickard managed to patent the crank, preventing other engine manufacturers from using cranks and forcing them to use a sun-and-planet gear arrangement instead: https://en.wikipedia.org/wiki/Sun_and_planet_gear )
The implementations are short and simple for easy reading, so they are not the most efficient or practical. Early versions of the code had bugs, so you should not use the old versions of the book.
The key is to do what Steven Muchnick did for his Compiler textbook: Write the algorithms in a made up programming language so no one can run them and find the bugs.
I'm not being facetious, it's called ICAN, and as far as I can tell no compiler exists for it. Other than that it's a great book though, although maybe showing its age in that there isn't much discussion of OOO and ILP etc. And SSA.
> The implementation of LISP began in Fall 1958. The original idea was to produce a compiler, but this was considered a major undertaking, and we needed some experimenting in order to get good conventions for subroutine linking, stack handling and erasure. Therefore, we started by hand-compiling various functions into assembly language and writing subroutines to provide a LISP ”environment”.
Amusingly, I had the old "Numerical Recipes" before there were versions for the different languages. Since I was writing in BASIC and then Pascal, I had no hope but to re-write the code myself anyway, and I couldn't afford to update when the new editions came out.
Not too long ago, a colleague asked me if I had a good code for linear regression, and I sent him a copy of the page from my undergraduate data analysis textbook, which had it in FORTRAN IV.
I have that book sitting on my bookshelf and would never dream of copying anything verbatim from it. Writing the code out yourself can significantly improve readability of the code.
As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.
That's not even remotely true. The plain language of the book says to have fun making them. It's irrelevant it you have fun selling them because that's an entirely separate act.
Arguing that you have a perpetual and transferable license wouldn't just get you laughed out of court; you'd likely owe Disney their legal fees for making a bad faith legal argument.
That book isn't an example of a contract, unlike the crazy Disney tweet.
The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.
So this license granted the purchaser permission to use Disney IP in exchange for the purchase price of the book...how is that different from a contract?
The distinction between a contract and a license is a lot smaller than most people in software seem to think it is [1].
A license is different from a contract because there is a separate body of law for licenses and another for contracts, with different requirements.
A contract can involve a license, and a license can involve a contract, explicitly. But they are different things. You need a lawyer to explain precisely how they are different, and how they interact. (Many judges and many lawyers are not very clear on license law.)
But one important difference is that there is no need for mutual agreement or exchange of value, in license law. If you don't agree, you don't have the license. You start out bound by its restrictions, under the Law of the Land, and they are only relaxed by its owner choosing to relax them.
Not all licenses are contracts. Some are deeds instead.
("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.)
There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".
The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset nor a subset of contracts. There is, however, a bunch of cracked case law around licenses created by jurists confused about the topic.
> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.
I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.
And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.
This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).
> I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
Neither of those state that it is not a contract.
> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".
> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent
A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.
That’s interesting, though... does that mean that in your understanding of the scenario (IANAL, you might or may not be) the original buyer might have a shot at making that argument?
Yeah, so my thought when I bought it was to offer to sell it back to Disney for $25k or something. I could most likely get a pro-bono defense while Disney would pay a lot more than that in a lawsuit which I would most likely win. Most likely. I still haven't acted on it yet.
You won’t win. The marginal cost to Disney of suing you is close enough to $0 that it’s not worth mentioning. Further the likelihood of a lawyer representing you pro bono in an unwinnable nuisance suit is much lower than you imagine.
Disney is a money printing machine. All they have to do is make another "Marvelous" movie or a "Space Fights" movie (yes that's XKCD) and that will add some more billions to their coffers. They got enough money to be dragging you to courts for another century. No pro-bono lasts that long.
Please do ! This would make an interesting case to study and you would certainly become famous. I would not be as confident as you that you'd be likely to win though ...
What if you can only have fun making the puppets while simultaneously murdering someone? Following your logic, Disney endorses murder. Complete nonsense.
But he was given an implicit license grant with no commercial restriction.
Technically speaking Disney can give you rights to murder anyone, it's just won't hold in court because:
- It's not theirs to give
- Law > contracts and licenses
Only argument I see if that book owned by some small company, probably and LLC, that couldn't possibly give you rights to Disney IPs since they are licensing it themselves.
Frogpelt kinda touched this. You can take some creative licenses for example. Feel free to use "that photo" or "that sound" but not for profit. BBC let free their sound library, and you can use any clip you want, except not for profit.
Right, but that's explicit in the license. On the other hand, it's broadly accepted that you can sell stuff that includes BSD-licensed works, despite the BSD license not explicitly saying you can.
That sounds like an awesome relic, got any pics or sharing the title of the book if you don't mind? Would love to see what the puppets look like in all their hand-crafted glory..
As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.