A phrase in children's book is unlikely to be considered sufficient evidence that Disney has conveyed an unlimited license to sell Mickey puppets.
At best, the language might protect an unsophisticated infringer from having to pay statutory damages or Disney's legal fees. For example, if a naive person (non-lawyer, non-business person) sold a few of the infringing puppets on Etsy, Disney would drop it (or a court would force Disney to drop the case, if needed) as long as the infringer promises to stop infringing.
In contrast, a sophisticated infringer would be hung out to dry. Because sophisticated infringers cannot credibly suggest that they believe Disney has conveyed an unlimited right to make and sell Mickey puppets based on a phrase included in a children's book.
Note, the words of a license or contract (including signatures if present) are taken as providing some amount of evidence of a license or contract. Contract docs memorialize an agreement between parties to enter into a contract. Formality requirements depend on the stakes, tradition, sophistication of the parties, etc. Most of this can vary widely depending on the industry or type of contract. Plus, in many cases, other statutes or regulations may come into play depending on the subject matter, type of agreement, duration of agreement, jurisdiction, and so on.
Here, since conventional language or formalities that Disney normally uses when licensing its IP is absent, a court is likely to find no license grant or contract.
Fair use is a balance of a number of conditions (in the US). One of them is how commercial the use is, and spin off merchandise is pretty commercial.
In contract law, signatures on a document memorializing a contract provide (often fairly strong) evidence that the signing parties have agreed to the contract.
Copyright protects the What (tangible creative works, such as, printed publications, movies, sound recordings, source code, and so on)
Trademark protects the Who (who made this service or product)
Patent protects the How (how does this widget do what is does)
IF cost_of_settlement < cost_of_court_action THEN pay_up(); /* ? */
Patents on software are not that simple - it needs to describe an entire physical system that gives value to a user, not just an abstract function that does computation.
You should not include code at any point if you do not have the proper license for it. The copyright pollution spreads and any attempt to "clean room it" would be more expensive than re-writing from scratch.
(It's similar to the early days of heat engines, where a guy called James Pickard managed to patent the crank, preventing other engine manufacturers from using cranks and forcing them to use a sun-and-planet gear arrangement instead: https://en.wikipedia.org/wiki/Sun_and_planet_gear )
Nothing stopped you from implementing them yourself.
I'm not being facetious, it's called ICAN, and as far as I can tell no compiler exists for it. Other than that it's a great book though, although maybe showing its age in that there isn't much discussion of OOO and ILP etc. And SSA.
https://en.wikipedia.org/wiki/Lisp_(programming_language)#Hi...
http://jmc.stanford.edu/articles/lisp/lisp.pdf
Page 7:
> The implementation of LISP began in Fall 1958. The original idea was to produce a compiler, but this was considered a major undertaking, and we needed some experimenting in order to get good conventions for subroutine linking, stack handling and erasure. Therefore, we started by hand-compiling various functions into assembly language and writing subroutines to provide a LISP ”environment”.
Not too long ago, a colleague asked me if I had a good code for linear regression, and I sent him a copy of the page from my undergraduate data analysis textbook, which had it in FORTRAN IV.
That's not even remotely true. The plain language of the book says to have fun making them. It's irrelevant it you have fun selling them because that's an entirely separate act.
Arguing that you have a perpetual and transferable license wouldn't just get you laughed out of court; you'd likely owe Disney their legal fees for making a bad faith legal argument.
The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.
The distinction between a contract and a license is a lot smaller than most people in software seem to think it is [1].
A contract can involve a license, and a license can involve a contract, explicitly. But they are different things. You need a lawyer to explain precisely how they are different, and how they interact. (Many judges and many lawyers are not very clear on license law.)
But one important difference is that there is no need for mutual agreement or exchange of value, in license law. If you don't agree, you don't have the license. You start out bound by its restrictions, under the Law of the Land, and they are only relaxed by its owner choosing to relax them.
Contract law applies to all licenses, but IP licensing law does not apply to all contracts.
("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.)
There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".
The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset nor a subset of contracts. There is, however, a bunch of cracked case law around licenses created by jurists confused about the topic.
I am no lawyer.
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.
I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.
And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.
This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).
Neither of those state that it is not a contract.
> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".
> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent
A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.
The Russian Mafia think my chances better beating them than Disney.
Technically speaking Disney can give you rights to murder anyone, it's just won't hold in court because:
- It's not theirs to give - Law > contracts and licenses
Only argument I see if that book owned by some small company, probably and LLC, that couldn't possibly give you rights to Disney IPs since they are licensing it themselves.
Perhaps you meant something else.
As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.