The Open Software License, Version 3.0

Posted Aug 18, 2005 7:30 UTC (Thu) by tsr2 (subscriber, #4293)
Parent article: The Open Software License, Version 3.0

concerns about whether a license can truly be binding in Europe if the licensee has not explicitly accepted it.

I wonder how the licensee can then be licensed, if they are using a piece of software without accepting the license. Is this really any different to the US?

Surely it's illegal to use someone else's copyrighted work, without accepting the terms it's licensed under, regardless of whether you are in Europe or the US?

The Open Software License, Version 3.0

Posted Aug 18, 2005 9:10 UTC (Thu) by job (guest, #670) [Link]

Depends on where you are and what you mean with 'use'. Not all use requires a license. A text, for example, is something you normally can expect to have the right to read without adhering to any licenses. That, however, is not always true for computer programs. (IANAL, etc)

The Open Software License, Version 3.0

Posted Aug 18, 2005 22:48 UTC (Thu) by giraffedata (guest, #1954) [Link] (2 responses)

That's a good point, which people always miss because of incorrect wording such as "whether a license can be truly binding." In the US, a copyright license is never "binding." Copyright law is binding, and the license unbinds. A license permits, it doesn't restrict. You don't violate the license, you violate the copyright.

I'm just guessing, but I'll bet the difference is that in Europe a copyright license is more of a contract: In exchange for the right to distribute my code, you promise to license your own code that you add to it to the public in certain ways. The damage you do by breaking your promise can be more than the damage you do simply by distributing my code without my permission. But if you didn't accept the "license" terms, there is no contract, and all you owe me is the damage you caused by the copyright violation.

The Open Software License, Version 3.0

Posted Aug 25, 2005 11:35 UTC (Thu) by forthy (guest, #1525) [Link] (1 responses)

Have you ever removed the Windows XP-Home registry entry that limits the
functionality of XP-Home? An alert box pops up and tells you "by removing
this item, you violate the license". Afterwards, you can log in as admin
in normal mode, create "normal" users, and thus do the most basic things
to make XP-Home a bit more secure than as delivered. But you violate the
license.

Copyright, on the other hand, allows exactly this sort of patching. Well,
it's not even a patch, it's just removing a registry entry, it's use. It
does not touch copyright at all.

Microsoft considders licenses as contracts. They try to prevent
publication of benchmarks. They had wordings like "you aren't allowed to
speek badly of this piece of shit^Wsoftware" in some of their EULAs. They
even put some ban of free software into some of their licenses. They
actually think that copyright is too generous, and want their license to
restrict you further.

The fact that you usually don't buy Windows, but a piece of hardware,
unavoidable bundled with it, renders this "contract" unenforcible. But
that's IMHO and IANAL.

The Open Software License, Version 3.0

Posted Aug 25, 2005 15:33 UTC (Thu) by giraffedata (guest, #1954) [Link]

That sounds like another example of the same misnomer, then. I'm sure what Microsoft means is "you violate the end user license agreement." That's a contract wherein Microsoft gives you a copyright license in exchange for your promise to do (or not to do) some stuff. If you break that promise, you're no longer entitled to the license. Under ordinary contract law, you'd still have the license but would owe Microsoft money. But there may be some special provision for copyright license sales that says the license becomes automatically revoked.

Copyright licenses in the commercial world are typically tied to a contract of sale like this; it's special to the open source world that we give them out unilaterally (albeit with conditions attached).

In this case, I'm not entirely sure there's even a relevant copyright license. I think what you get in exchange for your promise not to check that box is the copy of Windows that you physically received.

The fact that you usually don't buy Windows, but a piece of hardware, unavoidably bundled with it, renders this "contract" unenforcible. But that's IMHO and IANAL.

That's the first I've heard of that theory, and I can't see any substance to it. I think if the hardware is unavoidably bundled with the software, then you're buying the bundle -- both the hardware and the software. Why would that one component of the computer system be considered not part of the merchandise?