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

On 7/14/05, Sean Kellogg <skellogg@u.washington.edu> wrote:

> This is not the 19th century...  the specific mechanics of a form are not an
> issue like they once were.  An agreement does not need to be written, or
> shook on, or any of that signed, sealed, and delivered stuff.

Please note that I included implied agreements as a possible form of
the mechanics of an agreement. This, however, does not make a copy of
the GPL text an "agreement"  by itself. Only in combination with at
least an implied agreement the whole thing becomes an agreement. Now I
would concede and call the GPL an agreement if there is no
conceiveable case where agreement and license text can be separated
but as it is, the text of the GPL itself separates the vast majority
of dealings with GPL software ("use") as out of scope.

> > > Do you not in fact have to
> > > agree to the GPL if you intend to use the rights under the GPL?
> >
> > The language of the GPL clearly contradicts this and that expliciticy
> > (is that a word?) IMHO clearly trumps any semantics argument about how
> > you actually make a copy when receiving a file over FTP.
> Really people...  I'm getting bored of saying this.  Just because something
> says it is or is not X, does not mean it is or is not X.

Something explicitly spelled out in writing is a strong indication and
you need to come up with something convincing to counter that. Your
argument that the written exclusion of "use" from the scope of the GPL
is invalid hangs on your at least controversial interpretation of the
mechanics of an FTP transaction.

> I suggest to
> you that Section 8 is not enforcable.  The main reason for it to be
> unenforcable is because of the warranty provisions...

You feel that the warranty provisions don't cover enough protection
from liability so you want to expand the scope of the GPL against its
explicitly spelled out wording. That doesn't sound like a valid legal
interpretation strategy. The more straightforward interpretation would
be that the warranty provisions just don't apply to things that are
out of the scope.
> But for the sake of everyone listening, I want to reiterate why this point is
> important.  IF I am wrong, and the GPL is not a biding agreement, then the
> warrenty provisions are void.  If they are void, Debian and all of the other
> Linux distributers could be potentially liable for mechantability and other
> exciting damages.  Does anyone here think that's a good thing?

I actually don't consider the warranty provisions binding for cases of
"use". When I use a piece of software that is being distributed to me
it is up to the distributor to provide/void warranty as he is my
partner in the transaction. Are the warranty provisions useless then?
No. If I go after the person distributing to me for damages the
warranty provisions protect the upstream author against the
distributor "passing up the buck".

For the jurisdiction that I am in this is not really a Problem for
Debian (=distributor) since good faith no-consideration transactions
are by law limited in warranty anyway (incidentially much to the
extent of the warranty provisions in the GPL). I guess other
jurisdictions have similar protections against seeking damages from
someone giving you a gift in good faith.

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