Re: New idea for finessing patent issues (was: lame (again!))
Barak Pearlmutter said:
>I think chose my terminology poorly. When I wrote "click through
>license" I was using the word "license" sarcastically. Hence the
>scare quotes.
>
>> From: Steve Greenland <stevegr@debian.org>
>> ... The fact that proprietary software vendors engage in those acts
>> is not an argument in favor of Debian doing the same. (Nor is it an
>> argument against doing it, either.)
>
>Yes, that is quite true. But it wasn't my point.
>
>The fact that vendors of proprietary software use these mechanisms is
>an argument that, if Debian used click-through notices, Debian could
>trust them to have some legal weight.
I dispute (note: IANAL) they have legal weight! Click-through's suffer
from the problem of no way to ensure they ARE a contract. Only under
UCITA (ack) can they be guaranteed to have force (assuming UCITA is
upheld).
Contracts require 4 elements (5 for some contracts):
1. Offer and Acceptance
2. Consideration
3. Competent parties
4. For legal purposes
(5, where needed: in proper form - i.e. written)
Note that offer and acceptance occurs BEFORE consideration is exchanged.
Now, with all the click-through agreements I've seen, how does a party
verify I accepted their offer? Because I DIDN'T do what they said I
didn't do? Maybe I didn't do it because I chose not to!
And, what is the consideration granted? I agree NOT to do some things,
they agree I don't do them. They're not giving anything up (note that
under Copyright law in the US, use of a program is allowed automatically).
But, you say, you're paying for the software! Yep, but that exchange
happened when I BOUGHT the software, before the clickthrough. Therefore
(based on my one term of contract law, but this specific example was
used), it's not a contract, because the offer came AFTER the consideration.
BSD, MIT, MPL, GPL, etc are all on strong legal ground because they GRANT
rights, not take them away. Offer and acceptance can be determined
easily: the license offers, and acceptance is use of the rights that are
not granted. Consideration: You agree to abide by the restrictions in
the license on use of the new rights, the author agrees to grant new
rights.
>
>The idea itself actually click-though notification. The "click
>through" was meant to imply that we could count on this being a valid
>information distribution mechanism just as much as many software
>vendors count on their click though licenses. Ie, we could pretty
>bloody well count on them being read and understood, in the same legal
>fiction sense that vendors count on click through licenses being read
>and understood.
Yep, "legal fiction" - I wouldn't count on them, because sooner or later,
some court in the world is going to spot the fact that they don't conform
to generally accepted forms of contracts!
>
>Let me note that we actually have many click-through notifications
>already. Some are so aggressive that a package won't configure
>without the system administrator acknowledging the notification. Some
>email the notification to the administer if there is suspicion the
>notice hasn't really been read.
Not in Main, I hope!
>
>I'm not thrilled about the idea of notifying users of potentially
>relevant patents. I wish the issue were moot, and that we lived in a
>world without software patents. I do what I can to make that true in
>this world.
>
>But the alternative - namely the status quo - is I think worse.
>
> STATUS QUO: do not distribute package
> ALTERNATIVE: distribute normally, but mention relevant patents
But can we distribute normally? Unfortunately, while I may disagree with
software patents, I live in a country that recognizes them. Therefore, I
MUST abide by them. However, many live in regions that are sane, and
don't.
Best bet is to get the US to change it's laws (it's called lobbying, and
politicking)
>
>Which of these is
>
> - less disruptive of development activities?
> - less sensitive to changes in the software patent situation?
> - more expressive of our disapproval of software patents?
> - more encouraging of development of free software whose use might
> violate some stupid patent in some stupid country?
> - more convenient for users in software-patent-honoring countries?
> - more convenient for users in countries without software patents?
>
>I would contend that the ALTERNATIVE seems favorable by these
>criteria. On the second-to-last it is a wash, on all the others it is
>winner.
Problem is, it doesn't. They can be in non-free (or maybe non-us), but the problem doesn't go away.
jeff
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