The Name thing.

[Chex]

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. http://papers.ssrn.com/sol3/papers.c...act_id=2010853

And

Rather, a license is a permission granted by one party to another allowing use of a property without fear of lawsuit brought by the granting party. A license does not include a return promise (i.e., consideration) from the licensee. So, as we all learned in law school, a license cannot be a contract under law. This is not to say that a license cannot be an element of a contract under which two parties trade promises, one of such promises being a license. This is commonly known as a "license agreement." But a bald license, a one-way promise, is enforceable outside of contract law. It is something apart. It exists and is enforceable under property law doctrine. http://softwarelawyer.blogspot.com/2...-v-katzer.html