A GPL-enforcement suit against VMware [LWN.net]

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 3:45 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (9 responses)

The company is definitely aware of the contract - it wrote it in the first place!

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 4:30 UTC (Tue) by dlang (guest, #313) [Link] (8 responses)

The question isn't if they are aware of the contract, the question is if they are aware of the other party in the contract.

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 7:28 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (7 responses)

> The question isn't if they are aware of the contract, the question is if they are aware of the other party in the contract.
Clickwrap/shrinkwrap contracts are a bit special. The manufacturer agrees to fulfill their duties beforehand, no matter who accepts the contract.

But otherwise there's no real difference. There are (at least) two parties to the contract (the manufacturer's acceptance and knowledge is implied) and the act of agreeing to it is legally significant.

Now imagine that we replace a GPL license with a contract for the Linux project:
1) We would need a corporate entity to issue the contracts.

2) We'll have to harden this entity from a hostile takeover. This is not a trivial issue, even carefully written bylaws can be worked around if a malicious entity gains control.

3) If we make a mistake in the contract or bylaws it's possible that ALL contracts may be voided and ALL users will have to stop using Linux.

4) Contributing to the project would require acceptance of the contract. Many countries (Russia) explicitly forbid legal entities to enter contracts that do not require a payment.

5) Many countries have complicated laws about international contracts.

6) While we can grant the downstream users a right to act on the behalf of the legal owning entity, they won't be able to issue contracts in their name.

Perhaps, it's possible to work around these issues. But I have a feeling that one would simply replicate the copyright laws.

A GPL-enforcement suit against VMware

Posted Mar 14, 2015 21:49 UTC (Sat) by Max.Hyre (subscriber, #1054) [Link] (6 responses)

Many countries (Russia) explicitly forbid legal entities to enter contracts that do not require a payment.

Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 1:45 UTC (Sun) by pizza (subscriber, #46) [Link] (4 responses)

> Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

No, that's just a legal nod-nod-wink-wink to get around paying more taxes than necessary on $VeryBigPurchases. Eg a house.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 2:32 UTC (Sun) by vonbrand (subscriber, #4458) [Link]

Around here, selling something for substantially less than the "real value" will get you into hot water with the tax authority...

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 4:19 UTC (Sun) by bronson (subscriber, #4806) [Link] (2 responses)

I don't think that's true. The US requires consideration for a contract to be valid (in most cases, IANAL) so, yes, some contracts tried to make themselves enforceable by exchanging something silly. In the past this tended to work since the court interpreted it as meeting the letter of the law. In recent decades they've been taking a more subjective view (IMO rightfully so) so you probably won't see contracts like that written nowadays.

http://en.wikipedia.org/wiki/Consideration_under_American...

Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 12:44 UTC (Sun) by pizza (subscriber, #46) [Link] (1 responses)

> Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

IANAL, but I have been through this a couple of times.

It's not the sale of the house per se (and the property taxes you pay depend on "fair market valuation") but rather it's the recording of the property deed at the time of sale. The two times I've dealt with that (in two different states) the deed was for "$1 and other considerations" to avoid having to pay several thousand extra dollars for what basically amounts to a title transfer.

I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.

Now on a car registration (in Florida, anyway) the actual sales price on the bill of sale is used to compute sales tax at time of registration. There are no yearly ad valorem taxes on the car itself, but the fees are based on the vehicle type and weight. Once the state gets its initial cut, they no longer care what the car's technically worth.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 22:56 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

> I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.
In Russia this is explicitly not allowed. In this situation, the mortgage company pays you $300000 and then you pay the seller. Of course, there are certain legal constructs to make this process to be atomic (so you won't be left with $300000 on your account and without a house, for example).

Anyway, this is getting a bit too far from the point - contract law is not suitable to replace licenses.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 19:06 UTC (Sun) by smurf (subscriber, #17840) [Link]

In Germany, as a legal entity you definitely must (expect to) benefit from any contract you enter into. You can't just give away some asset (unless the other party is the owner, or the asset is written off completely, or the recipient is a tax-exempt charity, or …).

There's no actual law against it, but representing a corporation you're expected to act in its benefit and, economically speaking, giving stuff to random people is not.

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 7:38 UTC (Tue) by smurf (subscriber, #17840) [Link] (2 responses)

They're not a contract, they're a license.

I habitually click these things away without reading a word of them. You offer a program for me to download, therefore you obviously intend to allow me to copy it onto my computer and run it. I have no intent to do anything else with the program (like modifying or redistributing it), so what limitations in that license could possibly affect me?

(Note that German consumer protection laws state that you can't hide anything deemed generally one-sided or unreasonable, including stuff like "you owe us €€€ each time you use the program", in your EULA.)

Disclaimer: I'm not a lawyer, but that hasn't stopped me yet.

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 9:18 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

No, shrinkwrap licenses are contracts that grant you a right to use the product. There are special rules guiding them (exactly because they are one-sided) but they are contracts nonetheless.

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 12:58 UTC (Tue) by smurf (subscriber, #17840) [Link]

That's one legal theory. The other states that the actual contract is that somebody offers a CD-ROM with the program, or the ability to download it, and you accept that offer by buying.

The right to actually [copy from the CD into memory and] run the thing is implied by that sale because that was the presumed intent of both parties, the transaction would make no sense whatsoever otherwise, and even judges tend not to be *that* stupid.

Also, many countries have quite stringent laws what can and cannot be implied by a simple over-the-counter sale. Like, for instance, what kind of warranty you may exclude. Together with the other implied rights you have (or do not have) by copyright law, this transforms most EULAs' legal content to the null string.

Worse (for the lawyer drafting the stupid EULA, that is), in some countries (also, Germany for instance) the whole text is null and void if there is a single statement in there that's not allowed to be there. No, a salvatory clause won't help you.

Anyway, this is all rather irrelevant in the context of this discussion.
The Linux kernel is not shinkwrapped. Or sold.

We only know that previous court decisions about the GPL have treated it as a license.

A GPL-enforcement suit against VMware

Posted Mar 11, 2015 10:10 UTC (Wed) by epa (subscriber, #39769) [Link] (6 responses)

I always thought the validity of click-through "licences" was a bit dubious, but my knowledge is limited. Are there examples of successful lawsuits for breaching click-through licence terms - for cases where such use would ordinarily be permitted as fair use or fair dealing under copyright?

I thought the licences were just the usual lawyer's technique of putting in as much as possible just in case and seeing if some of it can be made to stick. That may be counterproductive in jurisdictions where a single unenforceable clause makes the whole thing unenforceable. But they are not really intended to be rock-solid, just to create enough fear and uncertainty that it is easier to stay within the terms rather than risk a dispute. The GPL on the other hand is intended to be strongly enforceable in court, and has proven to be so.

A GPL-enforcement suit against VMware

Posted Mar 11, 2015 16:06 UTC (Wed) by dlang (guest, #313) [Link] (4 responses)

shrinkwrap instead of clickthrough, but Apple successfully put another company out of business because they were installing OS-X from a master copy instead of opening each OS package and installing from the individual CDs. This was in spite of the fact that the company purchased a Copy of OS-X for each machine they installed it on.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 7:11 UTC (Fri) by epa (subscriber, #39769) [Link]

I'm not sure that wouldn't be a straightforward copyright issue even in the absence of a shrinkwrap licence. I may buy ten copies of a book but that does not entitle me to burn nine of them and then make nine photocopies. Making the copy requires a licence from the copyright holder.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 19:30 UTC (Fri) by vonbrand (subscriber, #4458) [Link] (2 responses)

I remember the problem was installing MacOS on non-Apple hardware, and that is forbidden by the license.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 22:16 UTC (Fri) by dlang (guest, #313) [Link] (1 responses)

Apple went after them because they were installing MacOS on non-Apple hardware, but if you read the court documents, what convinced the judge was because they were imaging the systems from a imaging server rather than using the CDs in the individual MacOS boxes that they purchased.

At least, that's how I remember it without going back and looking now. It was such an odd thing to be pivotal in that case that it stuck with me.

A GPL-enforcement suit against VMware

Posted Mar 14, 2015 1:10 UTC (Sat) by zlynx (guest, #2285) [Link]

Law is so ridiculous sometimes.

In that case it seems they would have been OK if only they had opened each individual CD package and used that disc.

In the Aereo case they DID follow the law to its ridiculous end, creating hundreds of small antennas, and got hit with what the judge said was "the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act" Well, yes it was. It was following the "rules" exactly as written.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 6:13 UTC (Sun) by lsl (subscriber, #86508) [Link]

> I always thought the validity of click-through "licences" was a bit dubious, but my knowledge is limited.

At least in Germany (and probably the rest of continental Europe, too), EULAs and shrink wrap agreements are generally considered invalid if they put the customer at an undue disadvantage. Which, if I remember correctly, applies to almost anything you wouldn't voluntarily agree with if it wasn't a required part of using the software in question.