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Re: Contracts and licenses

Humberto Massa <humberto.massa@almg.gov.br> writes:

> @ 29/06/2004 11:28 : wrote Brian Thomas Sniffen :
>  >Humberto Massa <humberto.massa@almg.gov.br> writes:
>  >
>  >>@ 28/06/2004 15:38 : wrote Brian Thomas Sniffen :
>  >>
>  >> >A whole bunch of your argument was balanced on the claim that
>  >> >one had to accept the GPL in order to receive the licenses it
>  >> >offers, because it's a contract, and that it had to be a
>  >> >contract, because one had to accept it to receive certain
>  >> >benefits.
>  >> >
>  >> >I don't think either of those is true, and this is a good
>  >> >example of why I think that.  Calling it a nitpick doesn't make
>  >> >it less of a counterexample to your claims.
>  >> >
>  >>
>  >>Anyway, it depends on your jurisdiction. Here in Brasil, *every*
>  >>software license is a contract, and is ruled, aside from the
>  >>dispositions in Copyright Law (9.610/98) and Computer Programs Law
>  >>(9.609/98), to Contract Law and the Civil Code.
>  >
>  >
>  >So something as simple as the MIT/X11 license -- "I grant to you a
>  >license to make derivative works of this work, and to trade in them
>  >and it without restriction" is a contract?  Gosh.  How can I
>  >enforce it against you?
>  >
> If you (p.ex.) rip my (C) notices, which would be a violation of the
> license, I can go to Civil Court (in the case, prolly small claims
> civil court) and a Judge will make you put them back or else you go
> to jail.

That's a violation of the license?  But there isn't anything in what I
wrote about copyright notices!  Are you sure the judge is sending me
to jail for breach of contract and not for copyright infringement?

>  >If I issue a license as my example above, but appending "provided
>  >you wear yellow underpants," and then discover that you have
>  >distributed copies of the software without wearing yellow
>  >underpants, can I enforce the contract against you and obtain
>  >damages or your performance of the underpants-wearing?  Or do I go
>  >after you for infringing my copyright? >
> Both. If I go to Civil Court and the "wearing yellow underpants"
> clause is deemed legal by it, the judge will order you to wear
> yellow underpants; next time I catch you making copies while in your
> tiger underpants, I denounce you to the same judge and you'll go to
> jail by our equivalent of "contempt" (it's called "disobedience").
> *And* I go to Criminal Court and denounce you for copyright
> infringement, and now we're talking *real* jail time and hefty fines

That's criminal in Brasil?  Not a tort?  Wacky.  So you don't get any
damages from me infringing your copyrights?

> (real in terms of BR law -- down here the max jail time EVER is 30
> years: yeah, no 50, no life, and definitively no death penalty, its
> forbidden by our Constitution).

If you ever see a license which suggests the death penalty, I do hope
you'll consider it non-free.

> All supposing the "wear yp" clause is legal (which prolly is NOT).

How come?  In the US, I could certainly sign a contract agreeing to
wear yellow underpants in exchange for a license to copy and modify
various works.  I suspect that this hints at the difference between
the Brazilian legal term you're translating as "contract" and what I'm
talking about.

Here, I send you this shell script I have written, which highlights
3com devices: 'cat /proc/pci | tr 3 \*'.  I grant you a license to
use, modify, and distribute it, and to distribute any derived works
you make -- HOWEVER, I demand you send me a dollar for this.

Now, are you obligated to send me a dollar?  If not, why not.  You
*have* the license.  I granted it to you.  How can I enforce our

If I can't, how is that different from if I said that I grant you the
license unconditionally?

>  >>So, here, basically it's legally binding a license "contract" that
>  >>says you can only *use* the program or the data generated by it if
>  >>you are wearing yellow underpants (not really, but almost).
>  >>
>  >> >And I'll continue to argue that a license granted only by
>  >> >contract is non-free.  To the extent that applies to the MPL,
>  >> >it's certainly relevant.
>  >> >
>  >>
>  >>IRT jurisdicions like ours where, every license is only granted by
>  >>contract, where do you stand?
>  >
>  >
>  >It may not be possible to have free software in such jurisdictions.
>  >I don't understand their laws well enough to say that it's
>  >impossible -- indeed, the other messages you've sent about a
>  >universal right to make any copies necessary for operation imply
>  >it's not possible to have *unfree* software there.
>  >
> Any copies necessary for _the_ _operations_ _you're_ _licensed_ _to_
> _do_! This means you're infringing in my copyright if I put a clause
> "you may not click the File/Save menu entry" and you do so.

Do you really mean that copyright can restrict reading a book?  That
is, I could sell you a book, but not give you a license to read it?
Or sell you a program, but not give you a license to run it?

Then I'm even less convinced that you can have free software under
those laws.

Brian Sniffen                                       bts@alum.mit.edu

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