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

On Wednesday 13 April 2005 06:55 am, 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.
> False.
> For example, you can indicate acceptance of the GPL by exercising the
> rights it grants.

While I certainly appriciate the simplicity with which you view the law, I'm 
going to have to stand by my earlier comment and restate, once again, that 
the authors of the GPL claim it is NOT a contract, but rather a 
grant/license.  Now, I've said it before, and I'll probably say it again, 
lots of reasonable minds differ as to whether the GPL is actually a contract 
or not.  But if it is a contract then we need to start looking at acceptance 
by performace.  Did the party who failed to make explicit acceptance act in a 
way as if he did accept?

With the GPL that's a pretty easy to sustain...  the limitations on the 
average user of GPL code is that they give up their right to a warranty.  As 
long as they don't claim otherwise, I can't see how they could act contrary 
to the GPL.  If you are a developer/distributor, now you NEED to have agreed 
to the contract in order to exercise certain rights under the copyright act.  
This means you have either accepted the contract and given up the right to 
close the source of your own work, OR, you have refused the contract and you 
are in breach of the copyright act.

> 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?]

Its an unclear area of law, in my opinion.  If you install an illegal version 
of Adobe Photoshop on your employers computer are they liable?  That 
questions falls to a matter of agency law, not contract law.  Same goes for 
your installation of software on behalf of your dad.  When you clicked that 
agree button, you did so as his agent and he will be liable.


Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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