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Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls the GPL "License Agreement", ie; a contract.

On Friday 08 July 2005 02:37 pm, Glenn Maynard wrote:
> (dropped CC's; it's probably not productive for the actual contract-or-not
> debates to go to the bug, since we're not likely to come to a firm
> conclusion anyway)

Sounds good to me.

> On Fri, Jul 08, 2005 at 02:11:24PM -0700, Sean Kellogg wrote:
> > The debian-legal crowd is of several opinions.  My own, shared by some on
> > the list, is that the GPL contains certain warranty waiver provisions
> > that cannot be done in a pure license...  which means there must be a
> > contract and it must be agreed to (in the GPL's case, it is agreed to by
> > conduct).  Others on this list take a different view, but fail to explain
> > how they avoid the warranty stuff.
> I don't really follow.  I don't need a license to use software that I
> obtain legally.  If I'm not distributing or modifying the work, I'm not
> using any of the permissions granted by the GPL; I'm not performing any
> conduct that might indicate agreement merely by using the software.
> (Even if the popular wisdom that "copyright covers copying, not use" is
> no longer entirely true, the second paragraph of 0 explicitly excludes
> use being covered by the license.)  How am I agreeing to anything?

All true...  except you can't put in a legal contract "This is X" when in fact 
it is a Y.  The law, while often blind, is not that blind.  Consider "Work 
for Hire," saying something is a Work for Hire in an employment contract will 
not make something a Work for Hire, no matter how much both actors may want 
it to be a Work for Hire.  Its a matter of conduct.  I suggest the same goes 
for licenses and contracts.

I also agree that copyright doesn't cover use, but use can be controlled via 
contract, which is why most licenses are actually a combination of license 
and contract...  little bit from column A, little bit from column B.  Of 
course, only license violations carry that nasty statutory damages option.

> Saying "the warranty disclaimer is only valid if you agree to it"
> doesn't explain how I've agreed to anything.  You're arguing that the
> warranty disclaimer isn't binding, not that the GPL is a contract.
> (I won't debate whether warranty disclaimers work that way, since I
> don't know.)

That's an interesting place to arrive, but I can't fault it logically.  You 
seem to be suggesting it is more advantageous to consider the GPL a pure 
license, thus negating the warranty disclamers (which must be both 
conspicuous and agreed to if they are to be binding) thus exposing the author 
and distributors to potentially billions of dollars in damages, rather than 
just call the GPL a contract.  Strikes me the more advantageous thing to do 
is say it is a contract where conduct equals consent...  but only because it 
limits the potential liability of authors and distributors.  I certainly see 
the philosophical advantages of having the GPL as a grant that has no 
acceptance requirements, but you simply cannot disclaim warranties without 
consent in a state that has adopted the Uniform Commercial Code (which is all 
of them...  although a few of them have made the occasional amendment).


Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
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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