A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses

63 Pages Posted: 25 Feb 2012 Last revised: 21 Feb 2013

Christopher M. Newman

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 24, 2012

Abstract

The assertion that a 'license' is simply a 'contract not to sue' has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property interest. It may be closely intertwined with a set of contractual relationships, but its nature and consequences cannot be satisfactorily explained from within the world of contract doctrine alone. In this article, I seek to explain the complementary but parallel roles played by property and contract doctrine in creation of the various forms of legal interests we refer to as 'licenses.' Each doctrine has its own set of governing formalities that afford titleholders various means through which to create and protect use privileges granted to others, while still retaining residual title for themselves. I argue that clarifying the extent to which licenses are exercises of powers conferred by property rather than contract law provides a key to proper application of Section 204 of the Copyright Act of 1976, which has been (erroneously) construed as a statute of frauds governing contract formation, as opposed to one governing a specific form of property conveyance.

Keywords: bare, Blackacre, consideration, consistency, deed, duty, expectation damages, granting, implied, infringer, injured party, irrevocability, irrevocable, jural, logic, material breach, mutual assent, nonexclusive, Oliver Wendell Holmes, ownership, state, termination, theory, transfers, Wesley Hohfeld

JEL Classification: K11, K12, O34

Suggested Citation

Newman, Christopher M., A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses (February 24, 2012). Iowa Law Review, Vol. 98, No. 2, March 2013; George Mason Law & Economics Research Paper No. 12-23. Available at SSRN: https://ssrn.com/abstract=2010853 or http://dx.doi.org/10.2139/ssrn.2010853

Christopher M. Newman (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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