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Re: OSD && DFSG convergence

On Mon, Jan 27, 2003 at 12:27:49AM -0500, Russell Nelson wrote:

>> It's not a matter of being able to remove objectionable terms from the
>> license; it's a matter of any license that contains such a term already
>> failing to meet the requirements of the DFSG as we understand them,
>> because the license must not unnecessarily restrict the creation of
>> derived works.

> How does agreeing to a license restrict the creation of derived works?
> If you don't agree to the terms of the license, then you HAVE no
> freedom to create derived works.  There's a lot of licenses that don't 
> require a manifestation of assent.  And yet the current case law says
> that you can't enforce a license unless you've actually formed a
> contract.  The user has to realize that they're agreeing to a
> contract, and they have to do something which indicates that they
> agree with the contract.

Hmm, I think there are two separate issues here: there's the EULA
itself, which almost certainly violates the FSF's "freedom zero" (the
freedom to use the software, even if the user doesn't agree with the
license for redistribution and modification); and there's the license
one must agree to in order to modify/distribute the software.  There's
no reason to assume that the two licenses are the same; indeed, it's a
fair bet that, if click-wrap licenses of any kind are allowed, sooner or
later someone will try to embed in their distribution license a
requirement to present the user with a truly heinous EULA -- and they'll
probably still try to call it "free" (or "Open").

It may have been an oversight that the DFSG never directly addressed
freedom zero (it talks about non-discrimination against classes of
users, but that doesn't mean the license can't be equally *bad* for all
users).  However, it does require that *developers* be free to modify
the software; requiring developers to preserve the code that displays
the clickwrap dialog box conflicts with this freedom.

The net result is that freedom zero is protected by the DFSG so long as
there are programmers who believe in protecting it.

Steve Langasek
postmodern programmer

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