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

On Wednesday 13 April 2005 03:09 pm, 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.
> >
> > 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.

Sounds like a reasonable request.

> [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.

Not quite sure what you mean hear...  but I do know that a grant cannot impose 
active conditions.  If the active conditions are enforceable, then they need 
to be in a contract.  If my grant says "you can do X, but only if you do Y" 
then it it is a contrct.  If, instead, my grant says "you can do X, but not 
Y" then its less a condition and more that I reserved Y from the list of 
rights I gave you, so its not a contract.  The issue with the GPL is that 
waving right to warrenties is like saying "you can do X, but only if you do 
Y", which is a contract.

> [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).

Mr. Johnson's construction of the law regarding contracts of adhesion is 
wrong.  I wish it wasn't the case, and I think there are good policy reasons 
for adopting Mr. Johnson's opinion, but the courts have consistently ruled 
the click through license are not contracts of adhesion.  You'll have to 
address further concerns to your local legislator.

Additionally, I don't think we get anywhere with the statement that "some 
jurisdictions look at it differently."  This is always going to be the case, 
and if we dwelled on it for too long the whole of open source software would 
be swallowed by lawyers trying to write exceptions for each and every 
jurisdiction.  All I can do is tell you what I believe the U.S. law is on a 
subject matter.

> > 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.

Agency law says otherwise.  If I instruct my neighbor to install software then 
I am instructing that neighbor to consent on my behalf.  If the neighbor 
installs the software without my permission, and yet I have reason to know 
that he installed the software, then I may still be liable (this is to cover 
the employer who knows his employees are violating EULAs and doing nothing 
about it).  The only clear case is when it was without my permission and I 
had no reason to know it was installed.  But once I know, I am under a duty 
to figure out what happened and do something about it.

Preinstalled software, if I had to take a guess, probably comes with a 
contractual agreement that you are said to have agreed to when you buy the 
thing.  Although I bet you have the right to return all of that software if 
you don't agree.

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

Thats right, if I can manage to install the software without seeing the 
license, then I can probably get out of it.  This is why the technology 
requiring the click to actually happen is getting better and better.

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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