Why won't the myth of the "non-contractual" copyright license ever die? It's like a cat with 999 lives.
The Supreme Court in 1908 interpreted the scope of the copyright monopoly granted by Congress. The decision was BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908).
One observation of the Court concerned copyright and patent differences
"We may say in passing, disclaiming any intention to indicate our views as to what would be the rights of parties in circumstances similar to the present case under the patent laws, that there are differences between the patent and copyright statutes in the extent of the protection granted by them. This was recognized by Judge Lurton, who wrote a leading case on the subject in the Federal courts (Button Fastener Case, supra), for he said in the subsequent case of John D. Park & Sons Co. v. Hartman, 12 L.R.A.(N.S.) 135, 82 C. C. A. 158, 153 Fed. 24: [210 U.S. 339, 346] 'There are such wide differences between the right of multiplying and vending copies of a production protected by the copyright statute and the rights secured to an inventor under the patent statutes, that the cases which relate to the one subject are not altogether controlling as to the other.'"
The relevant statute in 1908 concerning "multiplying and vending copies of a production protected by the copyright statute" was:
'Sec. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statute, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.' U. S. Comp. Stat. 1901, p. 3406.
Today's counterpart is section 106 of the Copyright Act.
The Court noted that the scope of the ruling extended beyond merely "vending" and was decided in light of its main purpose --- that of "multiplying copies":
"The precise question, therefore, in this case is, Does the sole right to vend (named in 4952) secure to the ownerof the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract. This conclusion is reached in view of the language of the statute, read in the light of its main purpose to secure the right of multiplying copies of the work,-a right which is the special creation of the statute. True, the statute also secures, to make this right of multiplication effectual, the sole right to vend copies of the book, the production of the author's thought and conception."
It is crystal clear from the Supreme Court's holding that "the right of multiplying copies of the work,-a right which is the special creation of the statute" is constrained by the requirement of "privity of contract".
The Supreme Court has never revisited this "privity of contract" principle nor has Congress ever denied it. Congress did embrace this constraint in section 109(a) of the modern day law. No Federal appellate court has ever contradicted this restriction on the copyright monopoly.
It seems that Richard Stallman has been very successful in creating an a modern urban legend.
-- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
