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

> > [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.

On Wed, Apr 13, 2005 at 03:49:44PM -0700, Sean Kellogg wrote:
> 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.

Basically, I think the GPL offers a contract, but the GPL is significantly
more than just a contract.  The warranty disclaimer is a disclaimer
regardless of whether or not you use the copyright grant, though it's
undoubtedly stronger if you do use that grant.

> 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.

Well... the answers.com page on first sale doctrine indicates some
significantly different results from different jurisdictions, and
indicates that until this is resolved by the supreme court there's good
reason to be uncertain about what that eventual precedent will be.

> > > 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.

Agency law places on the agent an obligation to inform the principal
of the terms of contracts the agent has entered the principal into.
Until the agent informs the principal of these contracts, they are the
liability of the agent.

> If the neighbor installs the software without my permission, ...

That's not the issue.  The neighbor recommended the machine in the first
place, and Dad has been following the neighbor's recommendations on what
to get and so on.  Dad just wants something simple that he can use.

> 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.

Sure, there were probably some plastic envelope with EULAs which were
included with the stuff when the neighbor picked up the machine for Dad.
There might even have been some click through licenses that the neighbor
dealt with while getting the machine up and working.

But if that neighbor is in Iraq now, it's kinda hard to ask him.

> > 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.

And then there's 17 USC 1201.

But there's other issues as well (for example, buying software under
a student discount and then reselling it -- without clicking on the

Anyways, my original point is that you cannot simply assume that the
person in question has clicked on the click-through license.  That's a
fact that needs to be established.


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