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Re: Is this a free license?

Russ Allbery <rra@stanford.edu> writes:

> Thomas Bushnell, BSG <tb@becket.net> writes:
> > Courts care not about the technical details of *how* you copy, but the
> > fact that you copy.  You cannot copy qmail *at all* if you are making a
> > modified binary with it.  This means you cannot copy qmail and then do
> > with it what you want to.
> > And you cannot go out of your way to help someone else do it, if you
> > know they would be violating the copyright (that's called contributory
> > infringement).
> <http://cr.yp.to/softwarelaw.html>
> Why should I believe you instead of Dan?  Do you have a counter to the
> cite of Galoob v. Nintendo?

I'm not contradicting Dan at all.  

Dan is quite right for the case he considers.  But this is a different
kind of case entirely.

Qmail says "you may not copy this if you do X, Y, or Z with it".
That's not what Microsoft says; you don't have to agree with the
Microsoft license because it's a *shrinkwrap* license which tries to
*restrict* rights that the owner of a copy would normally have, and
Dan's argument is that the only way to restrict such rights is a
*real* contract (meaning, something you actually signed).

Qmail has a *different* kind of setup (indeed, it has the setup usual
for free software): it says "you can't copy this *at all* unless you
agree to these terms".  Like the GPL, you are free to reject the Omail
license, but then you are left with no rights at all.  And while the
copy of Microsoft Office that you buy still has rights even if
Microsoft takes a bunch away, with the case of qmail, you *didn't*
purchase anything, and you have no rights to copy *anything*--to even
*get* the first copy--except under the terms of the license.

This is the fundamental difference between right-granting licenses
(such as Qmail, the X license, the GPL, etc), and right-restricting
licenses (like the Microsoft ones).

The purchaser of a copy gets certain rights, and can't have those
restricted without a real contract--that's Dan's argument.  But it
doesn't apply to something where you *didn't* purchase anything and
you *don't* have those rights.

So that's why you, the person downloading qmail, don't have the right
to violate the license--because the license only *grants* rights where
you would have none, unlike Microsoft, where the license tries to
*restrict* rights that have been already granted at the point of sale.

Debian is in a different position; Debian would be a contributory
infringer if we put up a piece of software whose sole purpose is to
help people violating the qmail license.  

And, even if there were no prohibition in law of contributory
infringement, it would still not be nice for us to provide packages
that our users cannot legally use for their intended purpose--that
just serves to screw our users over.  

Note that Dan says:

"What does all this mean for the free software world? Once you've
legally downloaded a program, you can compile it. You can run it. You
can modify it. You can distribute your patches for other people to
use. If you think you need a license from the copyright holder, you've
been bamboozled by Microsoft. As long as you're not distributing the
software, you have nothing to worry about."

In the case of qmail, you cannot legally download the program if your
intention is to do one of the prohibited things with it--so the first
step of the case Dan outlines doesn't even get going.


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