What is a software license supposed to protect? - Part 2

I talked around a legal topic in a previous post ("What is a software license supposed to protect?") but was not aware it existed at the time. In that post, I said "Whether it is legal, legitimate, or "right" for a copyright owner to include license terms that go beyond the rights contained in federal copyright law is somewhat of an open question."

That issue is not as open a question as I had previously thought due to a relatively recent legal doctrine known as "copyright misuse".

The copyright misuse doctrine prohibits the owner of a copyright from enforcing it against an infringer if the owner has exploited the copyright in order to secure an exclusive right or a limited monopoly that is not granted by the copyright laws. (For a list of what rights are granted by the copyright laws, see my earlier post.)

This defense generally extends to copyrights covered by license agreements that include an attempt to leverage a copyright monopoly into a larger monopoly or exclusive right.

Typical situations where misuse can arise include:

  • Licenses that prohibit a licensee from using a competing product or service.

  • Licenses that require a licensee to license or purchase other property of the licensor.

  • Licenses that prohibit a licensee from independently developing products or works that compete with products or works of the licensor.

  • Licenses that seek to extend the temporal or territorial scope of copyright protection.

Courts that follow this doctrine will withhold remedies for infringement of the copyright (i.e. not enforce the copyright at all) until the anti-competitive effects of the misuse have completely dissipated.

U.S. Circuit Court Case precedents on copyright misuse:

On a related note, I did a little reading of the copyright law - specifically, what is *not* covered by a copyright. From 17 USC 102 (federal copyright law):

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The way I read section 102(b), various software services such as installation, support, design, etc. would likely be categorized as "procedures", "processes", or "methods of operation" and thus not protected by copyright. If such services are not protected by copyright, then a copyright owner has no basis (legal authority) to grant rights to or restrict rights from a licensee regarding performance of those services, as those rights already fully belong to the licensee.

The usual disclaimers apply here: I am not a lawyer. This is not legal advice and should not be construed as such. If you have legal difficulties in this area, seek out and consult with a competent attorney.