uninformed fuddy article [LWN.net]

uninformed fuddy article

Posted Jun 15, 2006 13:54 UTC (Thu) by arcticwolf (guest, #8341)
In reply to: uninformed fuddy article by jhardin
Parent article: HOWTO: Pick an open source license (part 1) (ZDNet)

IANAL, but I think you're wrong. Here's my take on it:

The GPL (like any license) is not a contract. The only thing that the license deals with (and *can* deal with in a binding fashion) is copyright-related questions.

Now, copyright has a "default deny" policy where (with some narrow exceptions) you are not allowed to do certain things (like copying the work in question) without permission from the copyright holder. The GPL, like any other license, thus does not restrict what you can do; rather, it gives you additional freedoms not automatically granted by copyright. You're free to accept the license or not, but if you don't, you only have the rights given to you by default by copyright law, which usually means you have no rights at all.

It's important to keep this in mind: a license can not put *additional* restrictions on what you can and cannot do, and this goes both for copyright-related questions and ones that are not. A license cannot take away your fair use rights, for example, and it also cannot dictate things that are wholly outside of the realm of copyright, such as what you use the software for.

That, BTW, is why EULAs are called "license *agreements*" - they pretend to be contracts, as opposed to licenses, as contracts are of course not subject to these restrictions.

(Personally, I believe that the doctrine of first sale means that such contracts are meaningless, BTW; if I buy Photoshop for a thousand bucks, I have paid for the right to use the software as I see fit, and I do not need any further blessing from Adobe to do so. As such, an EULA, whether it's shrink-wrap or not, is automatically meaningless; and what's more, it *cannot* even be a contract (so I also cannot agree to it), simply because a contract has to be a quid-pro-quo kind of thing. I already have the right to use Photoshop when I buy it, though, due to my existing contract with the store where I bought it, so Adobe is not offering me anything.)

But again, IANAL, so please disregard everything I just said.

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uninformed fuddy article

Posted Jun 15, 2006 21:58 UTC (Thu) by zotz (guest, #26117) [Link] (1 responses)

I think the theory under which EULAs try to work is that in order to USE the software which you bought, you must COPY it. Under the theory, you are not allowed to make those copies without the copyright holder's permission. Hence, your need to agree to their terms to be allowed to make the copies necessary to actually use what you own.

I think that is the theory.

What copies? Well, from the CD to the hard disk when installing for one. And from the hard disk to RAM when running for another.

Does someone else have more detailed and /or accurate information along these lines?

all the best,

drew

uninformed fuddy article

Posted Jun 18, 2006 0:23 UTC (Sun) by khim (subscriber, #9252) [Link]

Under the theory, you are not allowed to make those copies without the copyright holder's permission.

If the contract you've signed with store before opening the box is not enough for it to work - then store had no right to sell you this box at all. It's defective and must be replaced. Plain and simple.

Hence, your need to agree to their terms to be allowed to make the copies necessary to actually use what you own.

You can consider it non-critical defect in bought software. "Sure, when I first run it it showed some gibberish and I was forced to click it in different places on the screen to make it work - but since in the end it worked I decided it's not critical defect". Of course if EULA is presented on site before you actually paying money or download something - it's different story. But if you signed contract in the store - it's too late to add to it.