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Re: UnrealIRCd License (Click-Through issue)



On Mon, Sep 01, 2003 at 09:01:35PM +0200, Mika Fischer wrote:
> Hi!
> 
> * Wouter Verhelst <wouter@grep.be> [2003-09-01 20:39]:
> > So, even if you do not accept the license but you do copy, modify,
> > and/or distribute the Program, you're still bound by the License.
> 
> What about "use"? I think that's the most important one here.

Section 0. Read it, for a change :-)

("Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running
the Program is not restricted, [...]")

> > Not accepting the GPL is not a way to avoid it. You would be using a
> > copy of the program without the right to do so; it would be the Free
> > Software-equivalent of software piracy.
> 
> Could you then comment on the quoted comment on a ruling in my first
> email?
> ---snip---
> In order to resolve the question of arbitration, the key issue the
> Second Circuit had to decide was whether plaintiffs, by downloading the
> free software, agreed to be bound to Netscape's license agreement, which
> included the arbitration clause.
> [...]
> The appellate court found that having selected to download the program,
> users were neither required to unambiguously manifest assent to the
> program's license agreement nor to view the license terms, or even
> become aware of their existence. After examining California case law and
> relevant law governing contract agreements, the appellate court held
> that the act of clicking a download button does not signify assent to a
> contract's terms if the consumer is not aware of the them. Therefore,
> users are not bound by the SmartDownload license agreement since a
> "reasonably prudent" consumer would not have been aware of its
> existence.
> ---snip---

That may be true; however, such a ruling should not imply that a user is
free to do whatever he likes with the software. If the user does not
choose to accept the license, he still is bound by copyright law.

Copyright law does not give a user many options. Depending on his
jurisdiction, he may have the right to use the program; he may have
the right to install it. He probably does not have the right to copy or
modify it. He most likely does not have the right to redistribute or
sublicense it.

These rights are in most jurisdictions by default only available to the
author (you, in this case); only if you, as an author, explicitely give
permission to copy, modify, redistribute or sublicense, only then can a
user reasonably assume he has the right to perform these actions.

Therefore, if he does not accept the license, he can do next to nothing
with it. His only real option is to accept the license, and live by it.
This also excludes ignorance about the license text, since if the user
does not know about the license, he should assume his "default" rights,
as specified by copyright law, apply, as opposed to anything he would
want to, and technically could, do with the software.

Of course, this does not protect you against the ruling of a braindead
judge who should not have been a judge in the first place, but nothing
can.

Of course, IANAL, TINLA. Contact a solicitor if you want a certain level
of competence.

-- 
Wouter Verhelst
Debian GNU/Linux -- http://www.debian.org
Nederlandstalige Linux-documentatie -- http://nl.linux.org
"Stop breathing down my neck." "My breathing is merely a simulation."
"So is my neck, stop it anyway!"
  -- Voyager's EMH versus the Prometheus' EMH, stardate 51462.

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