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

> > 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.

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

On Wed, Apr 13, 2005 at 10:07:09AM -0700, Sean Kellogg wrote:
> 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.

[1] Examples and counter-examples can be simple.  But please don't
pretend that they cover all issues.

[2] I don't think you can construe this paraphrase of the GPL authors
claims as meaning that a person using that grant is free to ignore the
conditions imposed by the GPL.

[3] You might want to take a look at Richard B. Johnson's post (he posted
it a couple hours before you posted your message).

> 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?

I agree.

> 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.

The GPL isn't intended to restrict use, so "the average user" isn't
particularly interesting.  It's "the average distributor" who would care
or not care.  (Quote:  "Activities other than copying, distribution
and modification are not covered by this License; they are outside
its scope").

> > 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?

I was talking about cases where the user had legally obtained the

> 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.

But I didn't click that agree button.

He got his system with software pre-loaded.  Or, the neighbor installed
it for him.

If someone entered into a contract on Dad's behalf, and did not
disclose the contract to him, they are probably liable instead of Dad.
For example, if the EULA prevents resale of the software, and Dad
decides to sell the computer at a garage sale, I doubt he would be in
any danger of prosecution.  There would be no evidence whatsoever that
Dad had entered into a contract to not sell that part of the system.

In any event, it's not always the case that the existence of click-through
license means that a user has accepted the license.


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