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Copy-ouch March 8, 2011

Posted by Fiona in Craftiness, Law, Sheer bloody-mindedness.
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It’s that point in term where my saturation of law is such that I’m blogging about it!  This term, commercial contract law.  Let’s talk about the terminology of selling things.

This is something that’s come up in copyright discussions all over Ravelry for ever and ever, and it’s irritated me since almost that long.  I’m going to talk about it in relation to the law of the sale of goods in England and Wales.  I have no idea how similar or different it is in America, or anywhere else in the world, but I will say that the UK has a very well-respected, old legal system and that therefore the rules elsewhere in the world are probably similar-ish, and the terminology is almost certainly more or less the same.  I say this because I know it’s true of a lot of criminal law and tort law, and so I assume it’s also true of some of commercial and contract law.

When you sell something, for example a car, according to the law, you’re not selling a car.  You’re selling rights with regard to the car, or ‘interests’ in the car: that is, the right to take possession of the car, the right to use it however you like, the right to say who can use it and who can’t, the right to take all the profit if you decide to sell it on.  If you sell me the car, what you’re doing is selling me all the interests in the car, and all the interests put together are called ‘property’ in the world of commercial law.

Now, obviously, if what you’re selling to me is the pdf of a knitting pattern, you’re not giving me all the rights to the pattern.  I can’t take credit for the pattern, I can’t sell it on as if it were my own.  But, under UK commercial law, and the commercial laws of countless other nations, you don’t have to sell me all the interests to the pattern just by taking my £3.50 and sending me a pdf file.  What is usually being sold is not the pattern, but a license to use the pattern.

Use of the pattern, you’ll notice, is an interest in the pattern.  It is but one interest.  Right to reproduce the pattern, that’s another interest.  Right to sell the pattern on, that’s another interest too.  None of these interests are necessarily inherent in me getting my hands on a copy of your pattern.  Those rights belong to the designer automatically, as do all of the rights, because they’re part of the property of the designer.  So if I particularly want to reproduce my copy of your pattern, I can only do that if you’ve sold it to me.

The difficulty here arises when designers don’t state in advance, “If you buy this pattern from me, you are buying a license to do x, y, and z.  You are not buying a license to do a, b, and c, and you may not do these without my permission.”  So a lot of the problem with the law with regard to this comes from the question, what rights do we assume the ‘standard’ license to contain?  In other words, if it’s not made explicit in a contract, what can we imply are the license’s terms?  Everyone has different views on this, and I’m not going to offer mine because I’m scared the Copywrong Police will come and eat my brains.

The other thing that comes up and annoys me is the speed of people to say that they don’t need to honour license agreements, even informal or implied ones, because if it got to court it wouldn’t be upheld.

You’ll notice the enforcement of licenses of knitting patterns is not a hot topic in the legal world right about now, and that is because they basically never get as far as court.  You can say that this is because knitters and crocheters are all lovely and like keeping their goodwill and all that, but the fact is that out of all contracts, very, very few get as far as the courts.  That’s because contract law is not about who would win in front of a judge.  Contract law is about making people feel more confident about entering into agreements, so that more agreements are made, and things get done.  It’s also largely about creating avenues that the parties can go down to sort their disputes out without having to go up in front of an elderly man in a silly wig and talk about how someone stole their instructions for a scarf.  Just because something might not necessarily be enforceable in court – and I’ve no idea if these things would be, this is a flight of conjecture already – that doesn’t mean you shouldn’t do it.  Equally it doesn’t mean that contract law isn’t working with regard to it, and it doesn’t mean nobody is bound by anything.  Being bound does not equal having a remedy.  The law still sets a fair bit of store by good faith: it’s still a principle of the courts in the UK at least that you’ll do better if you approach the court with clean hands.

I think that’s about right, anyway.

If you’re on Ravelry, you’ll see that I’ve taken lots of pictures of jumpers and things.  Prepare to be bombarded with them here in the next day or two.

Also, Lent starts tomorrow.  I’m giving up buying yarn and casting on new things, with the two parameters that the second in a pair of socks doesn’t count as a new thing, nor does it if I rip something back and completely start the same item again.  I’m looking forward to getting a few things finished.

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Comments»

1. Cheryl - March 8, 2011

Well said. Copyright is a little pet interest of mine, and one of the major reasons I decided to study law.

I hate the copyright threads that always pop up on Rav. It always irritates me to see the amount of misinformation that gets bandied about, and for that reason I have resorted to maturely closing my eyes and pretending they don’t exist 🙂

Fiona - March 8, 2011

It’s one of those irritating things, isn’t it? Like mixing up assault and battery, and bandying about the Human Rights Act, always makes me squirm!

You almost certainly know quite a lot more than I do about copyright – they didn’t run an intellectual property course here the year that I could take it (but of course they did the years before and after – logic!).

2. Lucy - March 8, 2011

This exact discussion (up to and including knitting patterns) came up in a recent thread on TSF. I shall link them here and you there.

Fiona - March 8, 2011

Eek. I hope it’s less contentious there than it is on Ravelry, I wouldn’t want to set anything else off! It causes a LOT of animosity on Rav.


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