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Re: EULA with GPL??

On Tuesday, December 17, 2002, at 02:01 AM, Terry Hancock wrote:

Does the GPL as written (Vers. 2) allow a distributor of a modified software to impose a *use* restriction on users? At first, I thought, "No way!", but
I see the other guy's point ...

Iff the law were to allow such restrictions, which AFAIK copyright law does not, then maybe they could, but even then, there is a serious problem with that stance, which you seem to almost realize below.

Section 0, says in part:
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope.  The act of

Correct --- because the GPL is a copyright license, and acts other than copying, distributing, and modification are outside the scope of software copyright.

  6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions.  You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
You are not responsible for enforcing compliance by third parties to
this License.

Note "granted herein" -- does that mean that the use right actually *isn't*
guaranteed, so that a separate agreement could constrain use?

I suppose so, were it legally valid, but it could easily be gotten around, in a way you suggest below.

It occured to me that in order to have a click-through EULA, this
hypothetical software would have to have it in the code, and I have to have the full sources, so I should be able to remove the EULA from the source, recompile, and not have this "click through ceremony" happen. If I did that,
would the software then be free-and-clear?

Well, it's most likely free and clear even before you removed it. I don't see any way to argue that it isn't after you removed it (or even before you removed it, for that matter).

There are two _very_ serious problems with EULAs, especially on GPL software, that I see:
	1) You are being asked, in a contract, to give up various rights you
	   legally have. In exchange, you are being given.... well, nothing.
	2) Even if, somehow, (1) were a valid contract --- hell, it might be
	   in the state I live in (the only one stupid enough to pass UCITA)
	   the license under the GPL comes from the original author, so I'm
	   not sure how anyone else could claim to have any standing to
	   impose restrictions on use of intellectual property *that is not
	   even theirs*

In light of (2) especially, I think they'd be in for a VERY serious smackdown were the copyright holder to take them to court.

Or could they make me click through it to, say, download the software in the first place? (And the EULA be viral too, so that I have agreed to force
anyone else to do the same?).

If you think about how that virility would be accomplished, it'd be by making you have anyone you give it to agree to said "license." That would VERY clearly be an additional restriction on distribution, in violation of GPL 6.

As for relevance to Debian, can one assume that the GPL absolutely guarantees DFSG free? (As I'm pretty sure the DFSG *does* guarantee me this right).

No. Patents can get in your way. We have GPL software (e.g., gimp-nonfree, due to Unisys patents [expiring mid next year!] on LZW as used in GIF) in non-free.

Has this guy found a loophole, or are we both just clueless about the law?

I'd vote for the latter, with the caveat that IANAL and you should speak to one for legal advice.

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