With the new digital world, copyright is becoming a topic that everyday people are having to become familiar with. It is often hard to find a clear definition/example of the differences between the two. Earlier, I was perusing TechDirt and came across this article.
Take a look at comment #7 by Anonymous Cowherd (A shame he/she chose to remain anonymous on this). It is a great definition and explanation of the differences.
The breach of the Artistic License was presumably along the lines of:
Copyright holder: You can make copies so long as you do X.
Someone: Makes a non-fair-use copy without doing X, and distributes it.
-> Copyright infringement (not fair use & no permission to copy)The “not for resale” on the CDs was:
Copyright holder: Don’t resell
Someone: Resells
-> No copyright infringement (no copy made; original resold instead. First Sale. Arguable breach of contract.)Creative Commons non-commercial licenses:
Copyright holder: You can make and distribute copies for non-commercial use.
Someone: Makes and distributes a copy for commercial use; no fair use defense such as commentary or educational use.
-> Copyright infringement (a copy was made and distributed without permission and it wasn’t fair use)
Another case is:Microsoft: Don’t benchmark this code.
Someone: benchmarks the code
-> No copyright infringement (no permission-requiring* copy made; arguable breach of contract.)* USC Title 17 Section 107(a)(1) creates an exception for normal installation and use of software, so that such private and non-distributed copies as one makes as a matter of course in the normal use of software do not require any permission from the copyright holder. The only possible infringement here is if the guy benchmarking the code pirated his copy instead of buying it at the store.
As for the breaches of contract, USC Title 17 Section 107(a)(1) shows that there is no consideration in exchange for agreeing to typical clickwrap EULAs, as one does not need the copyright holder’s permission to install the software (as separate from buying it; an agreement that had to be signed to get a disk with a copy or to download a copy might be binding, just not one that is NOT tied to obtaining a copy). So, the benchmarking isn’t even a breach of contract by any SANE reading of the law.
That same lack of consideration prevents the NO RESALE stickers from creating a contract, so no breach of contract reselling those disks.
Likewise, there’s no breach of contract selling copies of the software that had been released under the Artistic License, even though in that case there WAS copyright infringement.
Copyright infringement and breach of contract are two separate things, each with its own criteria. The confusion stems from EULAs tending to include up to THREE separate things:
* Advance permission from the copyright holder to copy and distribute under specified conditions;
* A bunch of so-called contract terms supposedly governing use (not copying); and
* Disclaimers of warranty and liability on the part of the vendor.The first gives conditions, additional to fair use and transient/install/personal copies, under which copying isn’t copyright infringement.
The second, separately, gives supposed terms and conditions of use, unconnected with copying and therefore unconnected with copyright (whatever may be said sometimes to the contrary), and generally without consideration (so many jurisdictions are likely to find THOSE terms to be null and void).
The third, separately again, disclaims liability of any sort on the part of the provider of the software (or whatever) arising from your use of it.
What? Blizzard v. BnetD? That decision was, quite simply, flat wrong. Reverse engineering is not copyright infringement, breaching the clickwrap EULA on the software on the disk you bought and installed is not breach of contract, and the reverse engineers never did enter into any contract arising from actually signing up for the online service part, so they certainly can’t have breached THAT one. That judge was obviously on something — probably dirty filthy industry money slipped to him under the table.