Contracts & Usage (was Re: FilterProxy and DFSG)
> Anthony Towns [aj@azure.humbug.org.au] wrote:
> > On Mon, Mar 12, 2001 at 06:49:59PM -0600, Bob McElrath wrote:
> > > Richard Braakman [dark@xs4all.nl] wrote:
> > > > On Mon, Mar 12, 2001 at 05:37:40PM -0600, Bob McElrath wrote:
> > > > GPL section 6, when talking about distributing the program, says
> > > > "You may not impose any further restrictions on the recipients'
> > > > exercise of the rights granted herein."
> > > I'll go ahead and argue that unrestraind usage is not a "right granted"
> > > within the GPL.
> >
> > AIUI (and IANAL) it doesn't have to be: copyright only restricts people
> > making copies of a program, not using it.
>
> AIUI? I'm not familiar with that one. (as I understand it?)
>
> 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).
jeff
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