Re: [tlug] Novel embraces Microsoft

[stephen@example.com]

Keith Bawden writes:

 > I have never actually understood what "all rights reserved" actually
 > meant :-/

"All rights reserved" just makes explicit what is implicit under the
Berne Convention (the one that says you automatically get copyright on
any original work you create and fix in a medium).  That is, under
what is called the "doctrine of first sale" (at least in the U.S.),
the legal recipient of a copy may do anything he likes to that copy,
but all rights granted under copyright law, such as most copying (ie,
not for fair use), performance, or creating derivative works, are
reserved.

 > Also there appears that the notion of implied consent within
 > intellectual property law does exist. One example I read was the
 > implied consent to record a singers voice that they give by singing
 > into a microphone. The recording is implied, the distribution of
 > the recording is not.

I'd like to see the source for that.  In particular, I would expect
that the singer must know that the microphone is connected to a
recording device.  Ie, the consent implied is to turning the already-
connected recorder on, not to connecting the recorder in the first
place.

Also, copyright doesn't directly apply to a singer's voice, because it
is not fixed in a medium until recorded.  So this is a rather complex
example.  (A protocol on the wire would be considered a medium for
this purpose.)

 > In the end I'm still not sure that if a licence does not explicitly
 > remove implied consent to use a functionality then there is no harm
 > done in using the functionality.

That's not the way licenses work.  You have permission to do what is
listed in the license.  That's all, although of course the license
language may be ambiguous.

 > This is possibly why MS (and probably most others) place clauses
 > like this in their EULAs:

 > "RESERVATION OF RIGHTS AND OWNERSHIP. Microsoft reserves all rights
 > not expressly granted to you in this EULA. The Software is
 > protected by copyright and other intellectual property laws and
 > treaties. Microsoft or its suppliers own the title, copyright, and
 > other intellectual property rights in the Software. The Software is
 > licensed, not sold. This EULA does not grant you any rights to
 > trademarks or service marks of Microsoft."[1]

I don't know, but I think not.  The issue is the remedies available in
case of violation.  If you have been notified of the possibility of
violation, then criminal law and statutory damages are more likely to
apply.  Otherwise, the rightsholder is restricted to receiving actual
damages (perhaps trebled, at the option of the court).  This is
certainly true in the case of patents: if you list the patents that
apply in a prominent way on the label, then you can collect damages
from the time of use.  If you don't, then you can only collect damages
from the time you notify the alleged infringer.  (The notice above
would not be sufficient, you have to say which patents apply.)

 > bitkeeper licence to confirm if what Tridgell did was expressly denied
 > by the licence or not.

It does.  I've read it, in fact accepted it. :-)  For testing
purposes, only.  I don't use Bitkeeper, it wasn't sufficiently better
for my purpose to use proprietary software.

 > However, I have enjoyed this thread - Steve are you coming to the
 > meeting on Saturday I would enjoy a chat on this as it is obvious
 > you have a lot of knowledge on the topic :-)

Probably not, I need to be at a conference in Nagoya on Sunday, and
probably should go to some of the conference on Saturday. :-(