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Re: Dangerous precedent being set - possible serious violation of the GPL



On Sat, Dec 04, 1999 at 02:52:40AM +0100, Tomasz Wegrzanowski wrote:
> > If copyright law does not consider "combining with CORBA" to make a
> > single combined work, then a copyright-based license cannot
> > validly contain this criterion.
> 
> You may license what end-user will do with the code however you want.
> You may license that this code cant be used on Fridays for example.

Not in a Copyright license you can't.  In a Copyright license such as the
GPL you can only place restrictions on what a person must do in order to
be able to copy the covered work.  You could say in such a license they
could not copy the code on Friday (in which timezone, hmm?) but you could
not control when or how or why the software is run--that comes under the
Fair Use provision of Copyright law.

What you're discussing is a traditional proprietary software EULA such as
those found on for example windoze.  These work by forcing you to agree
that you have NOT received a copy of the software but instead a license
which allows you to access the software which you never own a copy of.  If
you make a copy you did so without permission of the Copyright holder and
have therefore committed Copyright Infringement.

This is why software comes in a sealed package that says opening it
constitutes agreement with the license terms.  The whole scheme is
designed to make sure you never have the rights granted to you under the
Fair Use provisions of Copyright law.


Arguably since you had to pay for a license before you were permitted to
read it and then are stuck with the situation that you cannot return
opened shrinkwrap software even if the inner CDs are still sealed if you
don't agree with the license terms you have then a right to sue if you
can't get a refund, but the store and the software vendor will pass the
buck or throw money at their lawyers to shut you up one way or another.

The legality of shrinkwrap licenses has yet to be resolved because
companies who deal in proprietary software under these licenses have been
so good at lobbying and otherwise throwing their money around.



Even if the unethical practice of shrinkwrap licensing were found to be
legal (this would require that there be some redress if you purchase the
software and don't agree with the license to get your money back, but
otherwise because of the huge precedent and the court justices' desire to
remain in good standing with those who have the power to remove them from
the bench you can expect they don't want to declare the existing two
decades of license practices to be illegal) you still have in most cases a
very different issue with downloaded software.

For one, unless unpacking the archive forces you to agree to the license
which says you may not attempt to reverse-engineer anything, you could
theiretically do whatever you want with your own copy including bypass
having to agree with a license on installation.

Authors of old style DOS "shareware" which just had a zip file containing
a program, some data, a license.txt, and an install.bat would have been
stuck if they ever tried to enforce their licenses since you didn't
actually have to agree to the license in order to use the downloaded copy.
(The SPA liked to conveniently ignore this fact.  They also liked to
ignore other laws and constitutional rights of their targets, but that's
another story)

Notice that most windoze shareware now comes as an exe which must be run
in order to extract the data--and only does so after you agree to the
license?  This is an attempt to make it harder for you to get at the
contents of the archive without agreeing to the license.  Can you still
get the contents?  Possibly.  Would they try to argue that you violated
the license terms if they found out?  Probably.  Would you win in court?
Depends on how deep your pockets are compared to theirs and which of you
has a better lawyer.


Sorry that's so long, but hopefully it explains the difference between a
Copyright license (which doing something that is normally illegal without
the license signifies acceptance of the license terms) and a shrinkwrap
license (which you must agree to never actually owning a copy of the
software before you can actually access it allowing them to take away your
right to Fair Use..)  The above is of course biased toward the US court
system and laws because that's where I live.  Things are at least
passingly similar in the rest of the world because of the Berne
convention.

> > Since the required sentence does not contain the author's name, this
> > does not cause the same practical problems as the BSD advertising clause.
> 
> This is only to be sure that they will tell their users about
> that some of it is really free, its not next MS-Windows, nor MacOS

They have to include the license and Copyright notices.  Failure to do so
is Copyright infringement and you can sue them for every penny they're
worth.


> > Also, it would be incompatible with the GPL.
> 
> I only want this EXAMPLE to be the-most aggresively-free DFSG-compatibile license
> I DO NOT like this license
> Evyrything I have ever written was GPL, Artistic or pd
> The biggest problem with GPL is that it is completely unreadable ;)

Simple, require that source always be available wherever the binary is.
ie, on the same ftp sites, in the same shrinkwrap box, etc, etc and that
beyond that requirement (and preserving Copyrights and stuff), anyone
could do anything else with it they wanted.

The GPL attempts to do this, but is a little more lenient with source code
because sometimes making sure source is copied along with binary is not
terribly easy.  The last version of the GPL was also written at a time
that this would have been somewhat more costly than it is today.

Note the result would not be compatible with the GPL.  It would also not
do what you want.  It's probably not possible to do what you want and have
it still fit the DFSG.  The reason the DFSG will work is because once
everyone has free software there'd be no profit in trying to hide source
or freedom from people (at least that seems like it's the goal to me..)


Hopefully GPLv3 will address some of your issues.  (BTW Richard, when can
we expect to see GPLv3?  I know thoughts about it have been tossed about
for some time, but I'd rather it be done sooner than later if reasonably
doable to make sure that some of the things that have changed since v2 was
written such as the popularity of dynamic linking, IPC, and the net as a
good way to distribute software are addressed.

I also think a lot of companies would like a little more CYA language in
the GPL if it's reasonable, but how much and what kinds of CYA language is
actually reasonable is likely to be a whole 'nother issue...

-- 
- Joseph Carter         GnuPG public key:   1024D/DCF9DAB3, 2048g/3F9C2A43
- knghtbrd@debian.org   20F6 2261 F185 7A3E 79FC  44F9 8FF7 D7A3 DCF9 DAB3
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* joeyh cvs commits his home directory. Aaaaaa
<drow> eeeeeeek
<drow> joeyh: That is simply evil.  Period.

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