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Re: Contracts & Usage (was Re: FilterProxy and DFSG)

Jeffry Smith [smith@missioncriticallinux.com] wrote:
> > And you've hit the nail on the head...I'm trying to separate the usage
> > license (LICENSE) from the copying license (COPYING = GPL), which one
> > ought to be able to do.  Am I the first to try this?
> > 
> > > It's probably possible to contract out of this, so that the users give
> > > up their rights to use the program however they choose once they have
> > > a copy, but this has to be in return for something. So you could say
> > > something like "You may only distribute this program if you don't use
> > > it for designing weapons to hurt baby seals" or something like that,
> > > but other than that, even as the author of the program, you don't get
> > > to dictate how anyone might use it.
> > 
> > Well, my license is essentially that (or intended to be at any rate).  A
> > contract.  Granted, it's an icky click-wrap license (and not even that,
> > since I have no way of knowing that the user has even *seen* the
> > license -- indeed, if they get it from debian they probably won't see
> > it).  The idea being that if some big company, school district, etc.
> > decides to deploy FilterProxy on a large scale, filtering other people's
> > content, they *will* read the license, and decide...hey, we can't do
> > this... (hopefully).
> IANAL, but have had business law in school.  Contracts (at least in the US) consist of 4 (or 5 in some cases) parts:
> 1.  Offer and Acceptance - this means a positive offer and acceptance.  
> GPL is covered because only the GPL gives you the right to redistribute 
> the code.  The author of the GPL code makes the offer, the user accepts it 
> when he redistributes.  What if I disagree with your license?  Under copyright, I have 
> the right to use the code, regardless of what restrictions you put in the 
> license.  
> If I don't agree with your license, I just use the code under 
> copyright.  If I do follow what you say, is it because I'm a nice guy, or 
> because I agree to the contract?  How do you know (and don't count on 
> click-wrap, remember a contract needs to be done before the exchange, not 
> after the user has the SW)?  Note that you say you have know way of 
> knowing if the user has seen the contract.  Therefore, it's not a contract 
> (no positive offer and acceptance).  We had case studies in class on 
> exactly this.
> 2.  Consideration.  Both sides give up something and gain something.  In 
> GPL, the user gains the right to redistribute, and gives up the right to 
> make things proprietary.  The writer of the code gives up the "first copy" 
> doctrine, and gains the knowledge that the code can't be taken 
> proprietary.  What consideration do you give the user of your code?  He 
> already has the right to use it.
> 3.  Competent parties.  I'll assume all parties are competent.
> 4.  For a legal purpose.  Well, nothing illegal here, so that's OK.
> 5.  In the right format.  Some contracts (like for real estate) must be 
> written, and physically signed..  No clue here, but assume it's OK.
> So, your "usage" license looks like it fails the first 2 parts of being a 
> contract (most EULA's do - which is why the big SW companies want UCITA, 
> to enforce them).

Well, ignoring the legality of the license (I know of no case where an
EULA was challenged in court, and I know of no case where the GPL was
challenged in court).  I agree EULA's should be unenforcable according
to contract law, however, I would be very surprised to see one
overturned in court.  The entire software industry is based on them.
These guys have pools full of shar^H^H^H^Hlaywers to write these things,
so someone must think they're enforcable.

From everyone's arguments, It would appear that what I have described is
possible.  That is, adding usage restrictions through a click-wrap
license.  The exchange is (2 above): the software for usage rights; 
the offer and acceptance (1 above) would have to be some kind of "read
this license and click 'I agree'" that so many web sites use to let you
download software.

It would appear, however, that causing this new license to propegate to
derived works would be impossible, since then it would conflict with the
GPL.  It would be a condition on copyright, which someone pointed out,
is considered legally an additional term in the GPL, which would violate
clause 6 "You may not impose any further restrictions on the recipients'
exercise of the rights granted herein".

One could always take the source for the click-wrap licensed software,
change one line, and start redistributing it.  (indeed, I don't think
changing it is even necessary under the GPL).

-- Bob

Bob McElrath (rsmcelrath@students.wisc.edu) 
Univ. of Wisconsin at Madison, Department of Physics

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