Language and changing technology: Language and changing technology


Three elements: Three elements Subject matter (e.g., patent #--, Microsoft Word, …) Rights (e.g., statutory, non-statutory) Uses or contexts for use (location, type of medium) Clarity at the outset Evolution as an issue


Rights granted: Rights granted Copyright: Reproduce, distribute, make derivative work … Patent: make, use, sell …. Software license: “use” Look at Kennedy case


Kennedy v. NJDA: Kennedy v. NJDA Research study, report NJDA changes content and distributes Kennedy sues “the government has the right to use, duplicate and disclose, in whole or in part, such materials in any manner for any purpose whatsoever and have others do so. If the material is copyrightable, Kennedy may copyright such, but the government reserves a … license to reproduce, publish, and use such materials in whole or in part and to authorize others to do so.


Software license: Software license CA grants UH the “right to use its database software for accounting applications.” Use means? "The application or employment of something” Black's Law Dictionary (8th ed. 2004). "legal enjoyment of property that consists in its employment, occupation, exercise or practice" Webster's New Collegiate Dictionary.


Shifting subject matter: Shifting subject matter State Contracting v. Florida Contractor comes up with new approach for sound walls Submits it and approved as change for more $ (VECP) SPC obtains a patent Florida uses the data and methods in obtaining bids on other projects “Contractor hereby grants to the Department all rights to use, duplicate or disclose, in whole or in part, in any manner and for any purpose whatsoever, and to have or to permit others to do so, data reasonably necessary to fully utilize such proposal on this and any other Department contract.” Issue?


New uses: New uses “Only the right to publicly perform the Work and only in theater before live audience” Not cover recording of performance Issues arise when less explicit For example: does this allow use of real time, streaming Internet links? Issue: ordinary interpret intent? Issue: set presumption for risk? Burden of eliminating or including placed on which party?


Boosey v. Disney: Boosey v. Disney Fantasia – “Rite of Spring” “ [Stravinsky] does hereby give and grant unto Disney . . . License … to record in any manner, medium or form, and to license the performance of, the musical composition ... Type of use: “The music of said musical composition may be used in one motion picture … The said music may be used in whole or in part and may be adapted, changed, added to or subtracted from, all as shall appear desirable to the Purchaser in its uncontrolled discretion. . . . “license to the work “is limited to the use of the musical composition in synchronism or timed-relation with the motion picture.” Disney releases video format


Approaches: Approaches What is the argument? How were motion pictures made and exhibited in 1939? Reservation of rights in S? ASCAP clause Interpretation approaches: “Core meaning” as understood then Favor one or the other presumptively Reasonably within the medium as described Reasonably included and foreseeable at time


This court: This court “Many years after formation of the contract, it may well be impossible to consult the principals or retrieve documentary evidence to ascertain the parties’ intent, if any, with respect to new uses. On the other hand, the parties or assignees of the contract should be entitled to rely on the words of the contract. Especially where, as here, evidence probative of intent is likely to be both scant and unreliable, the burden of justifying a departure from the most reasonable reading of the contract should fall on the party advocating the departure.”


Random House v. Rosetta: Random House v. Rosetta Rosetta creates e-books Random Hse, a prior licensee, sues License: “grant to print, publish and sell the work in book form” Distinguishes work and format: “work” in “book form” Compare Boosey – “motion picture” and solely in synch with motion picture.


Result: Result Random argues: Faithfully reproduce text as a reading experience Compare other types of books expressly covered “Book form” is limited grant in the industry Compares this to Boosey: Others were broader New use is a new medium MP cases had new work, here not Incentives to promote balanced


Problem : Problem Big Oil and Lankster are companies involved in seismic studies for the purpose of discovering oil. The studies involve creating sound waves in the earth in a given area, recording the return of the sound waves and creating computerized images of the data. In a major breakthrough, Big Oil obtains a patent on a process that allows the computer to create two-dimensional cross-sectional images and place these visually next to each other, creating the image of a three-dimensional underground map. The method for doing this involves use of mathematical cross-correlation, a widely known and widely used mathematics technique. The method is described as “series analysis.” Lankster desires a license for this technology, and since it is in the same business, wants the license to cover future developments in this technology. Big Oil is willing to grant the license. Lankster proposes that the grant clause read “a license for use of “series analysis” and any analysis process for seismic data that evolve from the licensed technology.” What do you advise either party about this license grant?


Slide14: Big Oil is willing to grant the license. Lankster proposes that the grant clause read “a license for use of “series analysis” and any analysis process for seismic data that evolve from the licensed technology.” What do you advise either party about this license grant? Self-defining subject matter? Product or element license – e.g., any use of cross-correlation? What contexts? New technology approaches or just this? If copyright – what “use”?