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Re: [dvd-discuss] Implied License to Watch the Movie

--- Ken Arromdee <arromdee@rahul.net> wrote:
> This doesn't sound like an implied license to watch the movie.  The implied
> license in this case seems to happen because it would be pointless for anyone
> to sell unusuable footage; so a license to use the footage is implied.  It
> doesn't seem relevant to the DVD cases unless the DVD companies are claiming
> the DVDs can't be legally used *at all*, as opposed to claiming they can only
> be used in some ways but not others.

It was cited in Foad v. Musil Govan Azzalinio by the 9th circuit. Foad is
another implied licence case, concerning architectural drawings. In footnote
10, Judge Fletcher said this:

"In Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990),
we held that the Copyright Act permits a copyright holder to grant a
non-exclusive copyright license by implication and that Effects Associates had
granted an implied license to Cohen. In reaching the latter conclusion, we
did not consider whether federal or state law determines the circumstances
under which a copyright holder has validly granted another an implied
copyright license. This is not surprising, since the choice-of-law issue was
not material to our determination of the case. Effects Associates stands for
the principle that a seller grants a buyer an implied license to use a product
for the purpose for which the seller sold it to the buyer. We can find no
California cases on point, but we have no reservations about predicting
that were the California Supreme Court to be presented with the issue, it
would adopt this common-sense principle underlying Effects Associates.
Since Effects Associates' finding of an implied license is consistent with
California law, it is consistent with our holding that state law generally
determines whether a copyright holder has granted an implied license."

After reading Effects Associates, it isn't as directly on target as I had hoped
it would be. The interpretation by Judge Fletcher above is a much more powerful
statement. Interestingly enough, she says that the question of whether an
implied licence is granted is one of state law. This raises the question of
whether we should redirect all of our "authority" and "first sale" arguments to
the state court, especially since the Central District of California just ruled
that consumer software is "sold". This would include XingDVD. 

Foad v. Musil Govan Azzalinio
9th Circuit, October 30, 2001
No. 98-56017

(Hey thanks for that makeashorterlink.com thingy!)

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