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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

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On Wed, 13 Apr 2005, Raul Miller wrote:

On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
Failure to have a click-through license means that there is no acceptance,
which is a fundamental part of contract law.  No acceptance, no
contract, no exceptions.


For example, you can indicate acceptance of the GPL by exercising the
rights it grants.

Furthermore, the converse is also false: it's quite possible to install
software on your machine without clicking on the click-through license.
For example, someone else might install it for you.  [You expect my dad
to figure out how to install anything?]


Fundamental to contract law is an agreement.
If there is no agreement, there is no contract.

For a contract to even exist, the parties involved
must have, at least at some time, agreed upon
the exact specified contract, not something
similar, but the exact specifications. To keep
these specifications precisely known by all
parties, they usually establish a written
contract. Written contracts are easier to defend
than others, but verbal, or even implied contracts
are no less valid.

For instance, if you purchase a screw-driver, there
is an implied contract called "fitness of use". It
should be useful for manipulating screws. If it
isn't, then the seller has the obligation to
return the buyer's money if the buyer returns the
screw driver. Just because the screw-driver was
designed for manipulating screws, does not bind
the purchaser to that use. The purchaser can use
the screw-driver as a pry-bar or a chisel. However,
any warranty is not implied for such use.

A computer program that forces, or by use of
coercion, requires a purchaser to "agree" to
some terms of use cannot establish a valid
contract. If you can't complete the installation
of the program unless you abide by some terms
shown in some menu, then some courts have
held that any implied contract is invalid because
one can't be forced to agree and have that
agreement represent a contract.

That's why so-called "employment contracts" where
a prospective employee is forced to sign some
paper or he doesn't get the job, are considered
unenforceable (read invalid).

It's very simple. The usual implied contract
of a purchased product is that the user pays
money and, in return, the user gets to use the

Many software companies have attempted
to corrupt this by requiring the user to
agree to additional terms after the user has
left the store with the knowledge that he
is now free to use the product for which he

Such an agreement is coerced and, therefore,
cannot represent a valid contract. Further,
one is never required to use the software for
its intended purpose just like you don't really
need to use a screw-driver on screws.

Lawyers make money by writing obfuscating contracts
and then attempting to enforce or defend against
them. Again, just because there is some stuff
in a software screen that you have to "click-
through", doesn't mean that it has any validity
at all.

When studying Law, one must realize that there
are no absolutes, unlike mathematics. One court
may hold one view of a law and another may
hold a completely different view. Even when
actions are moved out of the local courts and
into federal courts, the results of these
actions are not always predictable. Judges
often want to make "new law", often rejecting
case law.

For a good book on US Computer Software Law
Raymond T. Nimmer. ISBN 088712-355-4. There is
a beginning section on Copyright Law. For instance,
on page 1-16 ; "...the distinction between idea
and expression in flowcharts and source code is
uncertain. As a practical matter, the distinction
indicates that copyright is not a viable protection
for the author of a program in these forms."

Dick Johnson
Penguin : Linux version 2.6.11 on an i686 machine (5537.79 BogoMips).
 Notice : All mail here is now cached for review by Dictator Bush.
                 98.36% of all statistics are fiction.

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