It is not a GPL-infringement suit

Posted Dec 7, 2009 18:45 UTC (Mon) by martinfick (subscriber, #4455)
In reply to: It is not a GPL-infringement suit by JoeBuck
Parent article: Artifex launches a GPL-infringement suit against Palm

Not quite. If something is deemed unenforceable by copyright in the license, then the license can be "challenged in court". Just because someone "acccepts" your license does not mean they are bound to everything in the license. Try making a license that is similar to the GPL, but with the additional stipulation that author has the right to: "<add ridiculuous stipulation here>" and I think you will find that there will be many jurisdictions that will allow you to challenge the license itself.

It is not a GPL-infringement suit

Posted Dec 7, 2009 19:04 UTC (Mon) by drag (guest, #31333) [Link] (4 responses)

This is why companies tend to use a combination of EULA's and Copyright licenses to restrict their software. Just because somebody is using your software does not mean that you get to do whatever you want to them, but if the agree to a contract then you can have lots more control.

Since the EULA invokes contract law and not copyright law then that gives them a lot more flexibility in the type of restrictions and requirements that they can place on you for using their software.

For example using Microsoft Office or Windows requires you to submit to a software audit if they suspect you of violating their EULA; at your expense. (I _think_)

Depending on were you are at in the world EULAs have different effects. Some states in the USA there are some restrictions on them based on the fact that you only can agree to most AFTER you purchased and openned the software and that gives you some leverage in fighting EULAs to a limited extent... but in most states they are on solid legal ground. I expect that different countries are all over the map in terms of legality and enforceability.

IANAL

Since a EULA invokes contract law ...

Posted Dec 7, 2009 21:16 UTC (Mon) by AnswerGuy (guest, #1256) [Link] (3 responses)

Whoa, Nelly! IANAL either but last I heard it was not entirely clear that a (shrink wrapped or click-through) EULA is technically a valid contract. There are licensing agreements which are definitely entered into as contracts.

If you enter into a purchasing/licensing agreement directly with a software vendor (or authorized agent thereof) then it's pretty clearly a matter of contract law.

However if you purchase a product in a retail environment (possibly including downloads from public internet sources) then there's a reasonably good argument that the UCC (uniform commercial code) or UCITA (for those jurisdictions that have adopted it) are the legal framework governing the transaction).

In other words there have been arguments that EULAs (presented in shrink-wrapped or click-through forms) are not enforceable contracts because the overwhelming expectations of the majority of the parties involved believe themselves to be engaged in a retail transaction which, implicitly, as a matter of long-standing historical tradition, has been governed by its own rules.

So far as I know that argument has not been unequivocally refuted.

Since a EULA invokes contract law ...

Posted Dec 7, 2009 22:00 UTC (Mon) by drag (guest, #31333) [Link] (2 responses)

Like I said it depends on were you located.

Different states have different court precedent, but the majority of states
are pro-EULA. Just depends on what happened when people challenged EULA in
their particular courts.

Since a EULA invokes contract law ...

Posted Dec 7, 2009 22:03 UTC (Mon) by drag (guest, #31333) [Link] (1 responses)

Oh and it's not whether or not the EULA is legal, the dissagreement, I
think, stems from how effective they are in the retail-type environment.

I am really stretching here, so don't take what I am saying with much
weight.

Since a EULA invokes contract law ...

Posted Dec 13, 2009 2:20 UTC (Sun) by Baylink (guest, #755) [Link]

Well, to clarify the language, the issue is whether case law in the jurisdiction in question gives any effect to a contract a buyer could not read before performing the action which purportedly gives it effect.

EULAs are contracts of adhesion; anywhere they have effect, the courts have sold out to the corporations.

It is not a GPL-infringement suit

Posted Dec 7, 2009 19:04 UTC (Mon) by rahvin (guest, #16953) [Link]

If the license is ruled invalid then the infringer has no right to the software.

That's the kicker with the GPL, if you rule the license doesn't apply is or invalid the code reverts to standard copyright law meaning you have to have the individual owners permission to copy (which they won't have) and it's straight up copyright infringement. The GPL is your only right to distribute the software and it's not a severable license, if any portion of the license is ruled invalid the whole license is gone (at least under US law) and you are liable for infringement for any use.

Anyone (like tSCOg) that attacks the GPL as being invalid or not applying simply reverts themselves to standard copyright and lose all rights to distribution which is just about the worst outcome possible because the GPL gave rights to distribute, standard copyright doesn't.