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Re: FilterProxy and DFSG

On Tue, Mar 13, 2001 at 01:35:14PM +0200, Richard Braakman wrote:
> So am I.  I'm actually quite concerned by the possibility that the
> GPL may allow usage restrictions to be added by others, I think it
> would be a serious bug in the GPL if it's true.  That's why I'm
> exploring every detail.

I don't think you need to worry.  Here's why:

[I may explain lots of things you already know below, but I'm just
trying to be clear.]

There are fundamentally two kinds of licenses applied to software
today, and they are really very different. In fact, they really aren't
in the same category at all.  

The first kind is the kind we know well, such as the GPL.  This
license offers you the license to copy the copyrighted work (a right
reserved to the copyright owner by USC 17) in exchange for certain
actions on your part.  For some licenses, these actions are just
reproducing a copyright notice.  For others (such as the GPL) they are
much more complicated.  

The second kind of license is that featured in the Microsoft EULA.
This license offers you the right to use the software provided you
agree to a contract.  Note that the manner of use is *not* one of the
rights reserved to the copyright holder by law.  This is why they
can't simply state their terms the way the GPL can.  The Microsoft
EULA offers you the chance to give up your rights in exchange for the
right to use the software.  Note that if you bought the software, it
might be suggested that you already had this right.  

Aside from the problem of offering a right you might have already had,
the latter kind of license has a number of problems relating to
contract law.  These include the fact that you don't actually get
anything for your agreement, the fact that you don't get to negotiate
the contract, and the fact that these contracts are so blatantly
unfair as to be potentially unenforceable.  However, these
difficulties are neither here nor their.

As far as applying use licenses to GPL'd software goes, there are two

1.  You distribute the software, and ask people nicely to sign a
contract giving up their rights.  Aside from the unenforceability of
contracts that one party gains nothing from, this seems somewhat

2. You distribute the software only to those people who sign a
contract.  This is clearly an additional restriction placed on the
distribution of the software.  The statment "you can have this
software if you agree to this contract" is far more of a restriction
on the distribution of the software than "you can have this software
if you interpert this license under the laws of the state of
Virgina".  Since the latter is an unacceptable restriction on the
distribution of GPL'ed software, the former must be.  

So, applying a mandatory use license to GPL'ed software not
copyrighted to you is a violation of the license.

Also, the FilterProxy use license has no effect.  This is because it
is not a contract (at least, the parts of it that I've seen quoted
aren't parts of a contract).  It is simply a statement of the
copyright holders demands of its users.  However, the users have no
legal obligation to use the software in the manner required by the
copyright owner.  Therefore, there is no legal force behind the
FilterProxy LICENSE file.  

This brings up an interesting question: is FilterProxy really
non-free?  Since the non-free portions of its license are legally
irrelevant, do they still make it non-free?  If I included a statement
requiring users of my software to to grow horns after using the
software, would that make it non-free?

On the relevant new laws: the DMCA has no bearing on this sort of
thing at all.  It isn't really even a copyright law, despite being in
section 17.  But if you want to hear people rant about that, there are
plenty of other places.  With regard to UCITA, what that will do is
make the contracts I described above legally binding, and make it
possible for them to include all kinds of nasty provisions, many of
which are blatantly unconstitutional (cf. database benchmarks).  But
it wont make the FilterProxy license any more valid, since it still
wouldn't be a contract.  
sam th --- sam@uchicago.edu --- http://www.abisource.com/~sam/
OpenPGP Key: CABD33FC --- http://samth.dyndns.org/key
DeCSS: http://samth.dynds.org/decss

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