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Week 5.1: Electronic Commerce: the definition, distribution and exchange
of property in cyberspace:
Required Reading:
1. Software Licensing
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License versus sale: Warner Communications
at SAIL 441-45; Harmony at 445-450;
Novell at 459-61. |
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UCITA: Note at SAIL 453-58. |
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Bundling at 463-64. |
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Price discrimination and copyright
protection of digital works: at 464-68. |
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Control after resale at 469-70. |
2. Open Source as a model of distribution and
exchange
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The GNU/Linux project: free software
licenses: <http://www.gnu.org/licenses/license-list.html#SoftwareLicenses>
Optional reading: |
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Should movies on dvd be defined
as software? See discussion in Australian Video
Retailers Association Ltd v Warner Home Video
Pty Ltd [2001] FCA 1719 (7 December 2001): http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1719.html> |
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Jessica Litman, Copyright Compliance
(Or Why We Can't 'Just Say Yes' To Licensing),
29 N.Y.U. J. Int'l L. & Politics 237 (Fall
1996-Winter 1997): http://www.msen.com/~litman/no.htm |
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Peter Lyman, The 2B Debate and
the Sociology of the Information Age, 13 Berkeley
Technology L.J. 1063 (1998) Lexis or http://www.law.berkeley.edu/journals/btlj/articles/vol13.html |
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Raymond Nimmer, "Breaking Barriers:
The Relationship Between Contract and Intellectual
Property Law" (1998) 13 Berkeley Tech
LJ 827. (Lexis; and at http://www.law.berkeley.edu/journals/btlj/articles/vol13.html) |
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David Nimmer, Elliot Brown, &
Gary Frischling, The Metamorphosis of Contract
Into Expand, 87 Calif. L. Rev. 19 (1999) (Lexis). |
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On open source see: Eric Raymond,
Homesteading the Noosphere: http://www.firstmonday.dk/issues/issue3_10/raymond/
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Discussion: specifically to reading:
| 1. |
Is it possible to reconcile CGI
and Harmony? (SAIL at 450). |
| 2. |
Does the project history accurately
describe the law existing before UCITA? SAIL at
457. |
| 3. |
Is there any need for UCITA? SAIL
at 458. |
| 4. |
Under Novell, is an advertisement
in jthe newspaper for sale of used software an
infringement of the trademark? SAIL AT 461. |
| 5. |
Why do some companies include a
no review clause in their software licenses? Is
the scope of the doctrine of non-trademark use
subject to erosion in the case of software distribution?
SAIL at 462. |
| 6. |
What is at stake in the license
versus sale debate? SAIL at 462. |
| 7. |
Is there something about the software
industry (narrowly defined) that makes the license
mechanism particularly suitable? SAIL at 470.
Or is software likely to be increasingly broadly
defined by the information and digital entertainment
industries to the end that we see a proliferation
of computer information licenses? |
For more general discussion:
Digital information is made available commercially
on a licensing basis, rather than being "sold"
as print copies of information have been. Increasingly
informational products are distributed subject to
"shrinkwrap" or "click-through"
licenses which purport to bind mass market users to
stated terms and conditions if the user loads the
information onto her computer or clicks on a button
saying "I agree."
| 1. |
Will contract displace copyright
in the information society? If so, how would you
describe the challenge (or the problem) for democracy
and constitutionalism in cyberspace: see "MS
chief lashes out at German Free Software petition",
2002: <http://www.theregister.co.uk/content/4/23964.html> |
| 2. |
How might the proliferation of information
licensing affect the way information is used?
Will mass market licenses make more or less information
available to the public? |
| 3. |
How do information licenses intersect
with copyright law and policy? |
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