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Re: Alternative trigger condition.

Dear Ross N. Williams <ross@rocksoft.com>,
you wrote

> How's this for a new trigger condition for The Free World Licence:
>      2.1 CONTRACT: This Licence is a legal contract between you
>      and the Original Licensor (and possibly between you and
>      other contributing Licensors as well). Licensor unilaterally
>      grants you a copyright licence to receive and retain a copy
>      of a compressed archive file containing the Module. However,
>      by extracting the Module from such an archive for the first
>      time, or by modifying the archive, or by otherwise
>      installing, browsing, executing, modifying or distributing
>      the Module, you indicate your acceptance of this Licence and
>      you automatically enter into a contract with Licensor, as
>      defined by this document.

I'm sorry to say, but in my opinion there is no way this is going to work.

For instance, since when do I need a copyright licence to receive and retain a
copy of whatever? If somebody gives me a copy of some work then maybe he has
violated some copyright in producing the copy, but as long as I refrain from
making further copies this is not something I have to worry about. Look, I
possess hundreds of books, for most of which I have no right (nor desire) to
copy them, and some of which may contain material that was illegally copied
(by their authors or publishers, how would I know?); however since I merely
bought these books, there is nothing I have to worry about. In the electronic
domain, this argument is essential. Every time one downloads a file by ftp,
accesses a website, or receives an email, one may acquire copyrighted material
that might have been illegally copied; if this would expose the recipient to
legal persecution, there would be absolutely no way to safely operate a
networked computer. There is only one sensible way that I can view this: the
sender in the ftp/http/email transfer is making a copy, and should make sure
no copyright is being violated, but the recipient need not have any worries as
long as he does not make further copies. (As a side note, some have put
forward that while holding information inside a computer, copies may be
automatically made for all kinds of purposes (buffering, caching, display,
(de)compression, extraction, execution, you name it). One must assume however
that such copies, which cannot lead to further distribution, do not require
permission from the copyright holder, or again it would become all but
impossible to safely operate a computer.)

Another point: what makes you believe you can unilaterally declare that "by
extracting ... you automatically enter into a contract ...". Suppose I opened
one the abovementioned books and found on page 163: "by opening this book you
automatically enter into a contract which obliges you to send a cheque of $100
every month to the author of this book and say a prayer for Bill Gates every
Sunday". I am not a legal expert, but my limited experience with entering into
legal contracts strongly suggests that this requires at least

(1) That all parties entering into the contract be aware of the fact that they
    do so, and of the existence and the identity of the other parties in the
    contract, and of which text constitutes the body of the contract.

(2) That all parties actively agree to the conditions of the contract, for
    proof of which they place signatures on copies of the text of the
    contract, so that each party obtains at least one copy that is signed by
    all parties.

(the measure employed to ensure these points are often quite elaborate,
involving for instance marking by hand every single page of the contract; I
must assume there are good legal reasons for such precautions.)
I imagine that parties that wish to regularly enter into contracts with each
other may agree to an alleviated procedure; however such contracts would be
binding only because of this former agreement, which itself is presumably
closed as a legal contract by the usual procedures.

The GPL states: "You are not required to accept this License, since you have
not signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works." Similarly, nobody can be
required to accept the accept the Free World Licence unless they signed it, or
they perform some act that is normally forbidden, but for which permission was
given under condition of acceptance of the FWL. Copying and distributing works
copyrighted by others is normally forbidden by copyright law, so the GPL is
justified in making its acceptance a precondition to granting permission for
these acts (I have some doubts about modifying without copying or distributing
though). By contrast, the FWL clearly wants to reach beyond the authority
provided by copyright law, which is why it wants to invoke a contract in the
first place; and it _must_ do so because it wants to control ordinary users of
the software (to prevent them from executing it on certain platforms), who
unlike the distributors do not need to consider copyright issues. But merely
extracting, installing, browsing or executing a legally obtained copy of data
is not forbidden in any way. If I bought a cookbook, I am certainly free to
(without explicit permission) cook and eat any of its recipes, or variations
of them, or to do whatever else pleases me with the book (except copying and
distributing the recipes); I may even legally eat the recipes themselves if I
like. Yes, I know that some well known software companies like to make their
customers believe that they enter into a contract by certain actions, but
unless those customers signed an agreement to this effect prior to obtaining
the software, these are just scare tactics with no legal basis. I hope it was
not your wish to join these companies in their dubious practices when
formulating the FWL.

In short, no action I perform on data legally obtained from a public server on
the Internet (except redistribution) will legally bind me in any way.

This means that what you want is fundamentally incompatible with the Internet
model of distribution. If you want to ensure that non-paying users do not
compile and execute code on non-free platforms, you can require them to sign a
contract with you before giving them access to the code; you could detail
whatever you like in the contract. Probably this would make the "free"
distribution more limited than you intend, though. Theoretically you could
allow redistribution of you software by third parties provided they ensure
that every recipient has signed such a contract (with you) prior to obtaining
the code (because distributors need your permission by copyright law); but
then of course no distributor could accept such conditions.

> I have changed the note to:
> Note      : Because this licence permits use on free
>             platforms only, it does not satisfy the
>             requirements for use of the US certification
>             mark "open source" as defined by the mark's
>             registrants in the web site www.opensource.org.
>             Consequently, this licence should not be
>             referred to as an "open source" licence and
>             software released under this licence should not
>             be referred to as "open source". However, you
>             can refer to such software as "free software".
> which I hope is less offensive. I'm assuming it was the
> "you are free to..." part that was offensive. If it's the
> idea of referring to it as free software that's offensive then
> let me know.

Yes, I must admit finding the idea of calling software supplied with such a
booby-trap scare tactics Licence "free" slightly offensive. But as has been
said, the word "free" is not reserved in any way. If it were called the
Free Prison Licence (referring to its freedom within strict confines), I think
I would be less offended though. But then you might be offended more...
How about the Free Gates Bill?

<disclaimer> I am not a lawyer; I am just trying to apply common sense, which
I realise may be dangerous in legal matters </disclaimer>

Marc van Leeuwen
Universite de Poitiers

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