[Diritto] Fwd: sui contratti

Alessandro Rubini rubini@gnu.org
Tue, 26 Feb 2002 15:16:56 +0100

Questo messaggo, anche se vecchio (6 gennaio), mi sembra
interessante. Ne cito delle parti:

> From: "Peter D. Junger" <junger@samsara.law.cwru.edu>
> Cc: fsl-discuss@alt.org
> Subject: Re: [fsl-discuss] UCITA and open source/free software 
> Date: Sun, 06 Jan 2002 16:15:43 -0500

> [...]
> Bernard Lang:
> : Could someone give a quick explanation (or a reference to a web
> : document) of the difference between sale, licence, contract and
> : "noncontractual copyright permissions."
> : 
> :  We may or may not have similar concepts in Europe, but the worst US
> : regulations tend to be contagious ... and we better worry right now,
> : rather than wait.
> Most of the distinctions have to do with common law concepts (and
> their misuse) rather than governmental regulations.
> The key distinction comes from US copyright law, which distinguishes
> between the intangible ``work'' of authorship that is copyrighted and
> the tangible ``copy'', like a hard-bound book or a floppy disk.
> A copyright gives its owner certain rights to exclude others from
> doing things like copying and distributing the work without the
> permission of the copyright owner, but it gives the copyright owner no
> rights whatsoever in any copy of the work that he does not own
> himself.
> When one buys a copy of a work, or is given it, (and that is what is
> meant by a ``sale'') one acquires all of the rights that one can have
> in a chattel---in a tangible movable object---including the right to
> resell it, or give it away.  (That right is expressly secured by the
> ``first sale'' doctrine that is expressly set out in the United States
> Copyright Law, to make clear that selling or giving away one's copy is
> not a violation of the copyright owner's exclusive right of
> distribution.)
> The rights of the copyright owner can be assigned to someone else and
> then that someone else becomes the copyright owner, but such an
> assignment has nothing to do with the problems we are discussing.  The
> copyright owner can also give someone permission to make copies of the
> work and/or to distribute them, and in general to do any of the acts
> that would be an infringement were they done without the copyright
> owner's permission.  Such a permission is called a ``license.''  (A
> ``non-contractual copyright permission'' would be some sort of license
> that does not involve a contract I suppose, but that is not a well
> defined term.)
> Now all I have to do is explain what a ``contract'' is under
> Anglo/American law.  (In practice it is very much like a ``contract''
> as that term was used in Roman Law and is used in Civil Law
> jurisdictions.)
> A ``contract'' is a legally enforceable promise or undertaking.  A
> promise or undertaking is enforceable if it is ``supported by
> consideration.''  (``Consideration'' performs much the same function
> as ``_causa_'' in Civil Law jurisdictions.)  Roughly,
> ``consideration'' is something that one party to a contract gives in
> exchange for the other party's enforceable promise.  (The most common
> form of contract is a so-called ``bilateral contract'' where the
> parties exchange promises, and each party's promise is the
> consideration for the other party's promise.)  The granting of a
> license will, of course, serve as the consideration that makes a
> promise made by the licensee given in exchange for the license
> enforceable as a contract.
> What makes this confusing is that software companies---and their
> lawyers---often claim that when you go into a store and buy a copy of
> a computer program you only acquire a license to use the program.
> What makes that claim confusing is that it is absolute nonsense, even
> though the software companies and their lawyers proclaim it so often
> and so loudly that a lot of people are deceived into thinking that it
> is the law.
> When you buy a Compact Disk onto which a computer program has been
> burned, you own that Compact Disk (i.e., you have _dominium_ over it)
> and you do not need a license to run a computer program.  The
> copyright law does not give the copyright owner the right to keep
> others from using the information in the copyrighted work in that
> fashion. And it is not an infringement of any right of the copyright
> owner to make a copy of the computer program on your hard disk in
> order to run the program: if the owner of the copyright did not give
> you a license to make any copies that are necessary to run the
> program, then you were defrauded when you purchased that program for
> one hundred dollars and got only a Compact Disk that is worth about
> ten cents.  (And anyway the United States copyright law contains a
> provision that expressly allows one to make the copies that are
> necessary to run a computer program.)
> Thus, when you buy a copy of a computer program you own that copy and
> you do not need any additional license to run the program.  (Of
> course, it would be possible for software companies to just lend you a
> copy of the software and give you a license to use it, but in that
> case the software company would have to take the disk back when you
> were done with it and that is not what happens when you buy a copy of
> a computer program.)
> Software companies try to get around these problems by claiming that
> you have entered into a contract with them in which you agree not to
> do all sorts of things like selling your copy of the software to
> someone else or making truthful remarks about how bad the software is
> _after you have purchased a copy of the software_.  Such contracts are
> usually mislabeled as ``licenses'' because they purport to give you
> permission to use the program as consideration for your promise not to
> sell it or say truthful things about it.  The trouble is, of course,
> that you do not need the license to run the program and that therefore
> the so-called license is worthless and will not serve as consideration
> for those promises that you did not make when you purchased the
> program.
> Those after-the-fact so-called contracts are what are usually called
> ``shrinkwrap licenses'' or ``clickwrap licenses.''
> The trouble with the proposed law called UCITA is that it would turn
> those unenforceable ``licenses'' into enforceable contracts.  (UCITA
> is a proposed uniform State Law, not a federal law like the Copyright
> Act.  If there are conflicts between UCITA and the Copyright Act,
> the Copyright Act would prevail.  There is some reason to hope that 
> UCITA would be seen as conflicting with the Copyright Act.  There is 
> more reason to hope that UCITA will be amended to get rid of its worst 
> features or that it will never become law in a significant number of 
> states.)
> I hope that this helps. 
> --
> Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
>  EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
>         NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists