AIX documentation

[Warner Losh]

On Sun, Mar 12, 2017 at 8:07 PM, Fred Cisin via cctalk
<cctalk at classiccmp.org> wrote:
>>>>> AIX documentation, but the trouble is, there are from security classes
>>>>> that were taught by private companies. Am I legally allowed to resell these?
>>>
>>> While not a COPYRIGHT issue, it is possible, and not unlikely, that they
>>> were considered to be part of the course work, and that those taking the
>>> course may have agreed, explicitly or implicitly, not to pass them on.
>
>
> On Sun, 12 Mar 2017, Warner Losh wrote:
>>
>> Such an agreement would need to be in writing and explicit. Otherwise
>> it's just like a text book which you bought for the class. See below
>> for what you can do.
>
>
> Materials supplied as part of a course, are NOT just like a text book, which
> is commercially available separately.  These materials were apparently never
> available except by enrolling in the course.

Unless they are covered under a separate agreement that's explicit,
Copyright Law applies. Being part of the course isn't magical.

> Sure, such an agreement would have to exit, but not necessarily attached to
> the course workbook.  It could exist as part of the documents that the
> participant signed to REGISTER for the course.
> And, as the appellate court ruled in ProCD V Zeidenberg, it does not have to
> be in writing, nor signed, so long as it is known AT THE TIME that the
> agreement was reached. (not necessarily NOW!)

That gets tricky to enforce. Absent a real, written agreement, the
courts have nothing to enforce. ProCD v Zeidenberg seems to fly in the
face of simple contract law.

> There is no problem with selling the sole copy in terms of COPYRIGHT law.
> Your comments are entirely about the copyright law.  Which is not the issue
> to be concerned about in this case.
>
> The worse problem here is whether the previous owner entered into a licence
> agreement as part of registering for the course.

Yes.  That would be an explicit agreement.

> I have run into such license agreements in registering for commercial
> courses.   ("all materials used in the course . . . ")
>
> Not seeing a license agreement attached to the materials is sufficient to
> show that you had no willful intent to violate it, and that should be enough
> to sell them, in good faith.  But it doesn't mean that it doesn't exist.

Which makes it hard to enforce in court, especially years after the fact.

> (Certainly having a work with the title/verso (copyright) page torn out is
> not the same as it never having had one, of course, but the license
> agreement need never have been physically attached)
>
>
> Remember that ProCD V Zeidenberg was about material that is presumably not
> even copyrightable!  but the courts upheld a violation of license, on a
> shrink-wrap license!  It was a LICENSE lawsuit, not a copyright one,
> although that was also alleged.
>
> http://www.freibrun.com/not-fast-appeals-court-reverses-upholds-shrink-wrap-agreement/
> Zeidenberg bought a retail "single user" copy (not even the multi-user
> version) of a CD-ROM telephone directory.  He then created a website selling
> access to the content from it.
>
> The appellate court explicitly ruled that ProCD did NOT have to print the
> license agreement on the outside of the box.
>
> The licensee does NOT need to sign!
> "A contract for sale of goods may be made in any manner sufficient to show
> agreement, including conduct by both parties which recognizes the existence
> of such a contract."  (about EXACTLY that.)
> (such as the documents regietering for the course!)
> Zeidenberg DID click the "I accept" box.
> If there WAS a license agreement, then it was abject stupidity for the
> licensor of these materials not to embed that information on the item!

Again, that's an explicit, in writing modification of the normal terms
of copyright. Click through licensing has been, I must note, non
uniformly  enforced.

> Personally, I feel that the court gave far too much power to adhesion
> contracts!

Yea. It certainly sounds like it, but I've not looked into the
particulars of that case to know for sure. One of the tenants of the
ProCD case is that the terms must be commercially reasonable and not
otherwise unconscionable which gives a lot of wiggle room for a good
lawyer. Absent seeing any agreement, it's hard to know what the terms
are. And if a number of years have passed since the original material
was distributed, it can be difficult to prove that the person making
the sale has an obligation to follow the original license if it wasn't
provided upon a sale contrary to the original license. It also depends
where you are located (China doesn't enforce click through licenses,
for example).

So there's lots of "yea butt's" here and the specifics of the original
company and License matter a lot. Absent those, it's quite difficult
to know what applies here. Maybe there was a license. Maybe the
licensor still cares. Maybe they can prove it in court. Maybe a simple
sale would trigger a case. Maybe not. It's all about how much risk you
are willing to assume in the absence of concrete, verifiable
information as to whether you proceed with the sale....

Warner