[Commons-Law] Re: commons-law Digest, Vol 30, Issue 8

[Mahesh T. Pai]

Hasit seth said on Wed, Jan 11, 2006 at 09:40:13PM +0530,:

 > write the article. A contract cannot override a statute, since by

Yes;  a contract  cannot override  a statute;  but in  this  case, the
Copyright Act gives the copyright holder the freedom to distribute his
work in  any manner  he likes -  by sale  of copies, by  assigning the
copyright and by licensing his rights. The Act never intended that the
copyright holder distribute  the work under a license;  but as long as
there is no explicit bar in the Act, it is perfectly legal for him|her
to distribute  the work under a  license, rather than  merely SELL the
copy.

There are  several decisions which  examine whether the  provisions in
the licens agreement are valid  or not; but none which examine whether
the  practise  of  licensing  was  intended  to give  a  copy  of  the
copyrighted work to the end user. 
 
 
 > definition  a contract  is  an agreement  enforceable  by law.  The
 > Copyright  Act  section 52.  (ac)  expressly permits  "observation,
 > study   or  test"  of   the  computer   program  for   purposes  of
 > understanding the working of the program.

Yup; so you long as you have a copy of the copyrighted work. Under the
``end luser icensing  agreement'', you do not *have*  a copy; what you
have is the *right to use* the copy. Under that EULA, (for proprietary
software; the  rights the end user  has are precisely  those which are
granted by the license.

If  the copy  was *sold*  rather than  licensed, the  user  would have
enjoyed the ``fair use rights'' under the Copyright Act. 

 >  Section  52 is  titled "Certain  acts  not to  be infringement  of
 > copyright".  Is there  a section  in copyright  act that  enables a
 > contract or a license to override the provisions of the Act?

Yes;  the provisions  relating  to the  licensing;  (Section 30);  the
proprietary EULA[1] is an agreement; the Copyright Act allows it.

 > I would like to know about  such a provision.  And yes, don't worry
 > you won't go to jail if you do what Section 52(ac) permits.

You wont  go to  jail till a  court convicts  you and you  exhaust all
avenues of appeal (chances of a conviction at the trial stage in India
is one  in fifteen;  and chances of  it being  reversed by a  court of
appeal are 9 in 10).

"You are not prosecuted" != "you have not broken any law". 
 

[1] Most Free/copyleft licenses  are mere grants; not agreements. That
is why licenses like  the BSD or GNU's GPL do not  require the user to
accept the license to use the software. 

-- 
Mahesh T. Pai

DICTIONARY, n.  A malevolent literary device for cramping the
  growth of a language and making it hard and inelastic.