4 ms·

> You only get a license to use the software Nonsense. Show me the contract I signed that created that situation. (difficulty: a post-purchase EULA or inside-t

by pdkl95 11y ago

> You only get a license to use the software Nonsense. Show me the contract I signed that created that situation. (difficulty: a post-purchase EULA or inside-the-shrinkwrap document is not a contract) I can't copy Windows because of copyright law. If I buy a book I own that copy. I cannot copy it, but I can do what I want with that copy, because the author's rights end at the first sale[1]. Now this does get complicated when you bring in the DMCA's anti-circumvention clause. This is a separate problem that restricts the use of purchased goods. There is a recent attempt to use the copyright on the firmware in in a product as leverage to extend these anti-circumvention restrictions to the entire product (see: John Deere[2]). As this drama is ongoing, we will have to wait to see how it is handled, but I would bet that the first sale doctrine is upheld; not because I think that outcome is likely, but because the alternative is de facto the end of personal property rights, which will not be a stable society. [1] https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine [2] http://ifixit.org/blog/7192/john-deere-mess/ http://ifixit.org/blog/7192/john-deere-mess/

dctoedt 11y ago
> Show me the contract I signed that created that situation [that is, getting a license to use the software]. (IP lawyer here.) First, there doesn't need to be a contract; second, even if a contract is required, it's quite easy for a supplier to get a customer to form one without getting a wet-ink signature from the customer. Fundamentally, an IP "license" is simply this: You want to take Action A. Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws. Licensor announces (to you specifically or to the world) that Licensor will not invoke that legal right against you, as long as your taking of Action A is limited to Circumstances C. You are now licensed. (That's how the GPL putatively works -- it's a bare copyright license, not a contract [1].) If a contract is required, one can be formed in a variety of ways, including an offer that is accepted by performance (known as a "unilateral contract") [2]. So-called browse-wrap agreements fall into this general category [3]. > (difficulty: a post-purchase EULA or inside-the-shrinkwrap document is not a contract) That's not a universally-held view in the courts [4]. [1] See, e.g., https://en.wikipedia.org/wiki/GNU_General_Public_License#License_versus_contract https://en.wikipedia.org/wiki/GNU_General_Public_License#Lic... and https://www.law.washington.edu/lta/swp/law/contractvlicense.html https://www.law.washington.edu/lta/swp/law/contractvlicense.... and http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2505&context=faculty_scholarship http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=... [2] https://www.rocketlawyer.com/article/whats-the-difference-between-bilateral-and-unilateral-contracts.rl https://www.rocketlawyer.com/article/whats-the-difference-be... [3] https://en.wikipedia.org/wiki/Browse_wrap https://en.wikipedia.org/wiki/Browse_wrap [4] See http://www.lawnix.com/cases/hill-gateway.html http://www.lawnix.com/cases/hill-gateway.html -- I have some problems with the reasoning and outcome of this case, but it's still out there.
- pdkl95 11y ago
  > GPL ... it's a bare copyright license, not a contract Yes, the GPL is a licence... for redistribution. As buyer of a product containing code licensed under the GPL, the GPL is not involved, though there is a recursive offer of a license should I want to redistribute the code. I can ignore the offer of redistribution license and use product any way I want (provided I do not copy it). This is even stated in the GPL itself (GPLv3, section 9). > Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws. That's entirely my point - I am not making copies by using the software. I'm not even making copies reselling my copy (provided I actually actually transfer the work; keeping a "backup" would be a violation). I have zero need for a license. Conflating use with redistribution has been a popular scam in recent years, in an effort to apply copyright enforcement tools to mere use. While software companies would like to control how their product is merely used, their rights end at the first sale. > copyright license, not a contract Yes, I'm very familiar with the difference. > unilateral contract ... browser-wrap Sure, provided all the elements are there. I have nothing against actual contracts. These are not involved when I walk into a shop and buy a widget with firmware in it. The only transaction is: pay cash, receive widget. Some software is sold under a proper contract, of course. Most things with software in them (and a lot of software) are sold plainly as a simple exchange. > That's not a universally-held view in the courts Key phases in my post: "post-purchase", "inside-the-shrinkwrap". Throwing legal papers at someone after consideration has already been exchanged is at best a new offer, which the customer has no obligation to accept. Yes, there have been a few badly argued cases on this topic. Contracts are not supposed to be a "gotcha"/surprise; a "meeting of the minds" (mutual agr4eement) is a requir4ed element. Therefor, I find it hard to believe that, in the long run, undermine hundreds of years of contract law by allowing extra obligations only seen post-purchase.
  - dctoedt 11y ago
    > I am not making copies by using the software. That's not how the law (in the U.S.) sees it. When you load software into RAM to run the program, you're making a copy, which requires a license from the copyright owner --- and that license can restrict the extent to which you're allowed to use the software (e.g., no service-bureau use). [1] [2] > I have zero need for a license. As you seem to recognize, but for the benefit of any other readers who don't know: The copyright owner's exclusive rights aren't limited to the making of copies -- those rights also extend, e.g., to the distribution of copies and to the creation of derivative works. [3] [1] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Comp.... [2] Congress enacted an exception in the case of computer repairs; see id. [3] https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106

by pdkl95 11y ago

dctoedt 11y ago

> Show me the contract I signed that created that situation [that is, getting a license to use the software]. (IP lawyer here.) First, there doesn't need to be a contract; second, even if a contract is required, it's quite easy for a supplier to get a customer to form one without getting a wet-ink signature from the customer. Fundamentally, an IP "license" is simply this: You want to take Action A. Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws. Licensor announces (to you specifically or to the world) that Licensor will not invoke that legal right against you, as long as your taking of Action A is limited to Circumstances C. You are now licensed. (That's how the GPL putatively works -- it's a bare copyright license, not a contract [1].) If a contract is required, one can be formed in a variety of ways, including an offer that is accepted by performance (known as a "unilateral contract") [2]. So-called browse-wrap agreements fall into this general category [3]. > (difficulty: a post-purchase EULA or inside-the-shrinkwrap document is not a contract) That's not a universally-held view in the courts [4]. [1] See, e.g., https://en.wikipedia.org/wiki/GNU_General_Public_License#License_versus_contract https://en.wikipedia.org/wiki/GNU_General_Public_License#Lic... and https://www.law.washington.edu/lta/swp/law/contractvlicense.html https://www.law.washington.edu/lta/swp/law/contractvlicense.... and http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2505&context=faculty_scholarship http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=... [2] https://www.rocketlawyer.com/article/whats-the-difference-between-bilateral-and-unilateral-contracts.rl https://www.rocketlawyer.com/article/whats-the-difference-be... [3] https://en.wikipedia.org/wiki/Browse_wrap https://en.wikipedia.org/wiki/Browse_wrap [4] See http://www.lawnix.com/cases/hill-gateway.html http://www.lawnix.com/cases/hill-gateway.html -- I have some problems with the reasoning and outcome of this case, but it's still out there.

pdkl95 11y ago
> GPL ... it's a bare copyright license, not a contract Yes, the GPL is a licence... for redistribution. As buyer of a product containing code licensed under the GPL, the GPL is not involved, though there is a recursive offer of a license should I want to redistribute the code. I can ignore the offer of redistribution license and use product any way I want (provided I do not copy it). This is even stated in the GPL itself (GPLv3, section 9). > Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws. That's entirely my point - I am not making copies by using the software. I'm not even making copies reselling my copy (provided I actually actually transfer the work; keeping a "backup" would be a violation). I have zero need for a license. Conflating use with redistribution has been a popular scam in recent years, in an effort to apply copyright enforcement tools to mere use. While software companies would like to control how their product is merely used, their rights end at the first sale. > copyright license, not a contract Yes, I'm very familiar with the difference. > unilateral contract ... browser-wrap Sure, provided all the elements are there. I have nothing against actual contracts. These are not involved when I walk into a shop and buy a widget with firmware in it. The only transaction is: pay cash, receive widget. Some software is sold under a proper contract, of course. Most things with software in them (and a lot of software) are sold plainly as a simple exchange. > That's not a universally-held view in the courts Key phases in my post: "post-purchase", "inside-the-shrinkwrap". Throwing legal papers at someone after consideration has already been exchanged is at best a new offer, which the customer has no obligation to accept. Yes, there have been a few badly argued cases on this topic. Contracts are not supposed to be a "gotcha"/surprise; a "meeting of the minds" (mutual agr4eement) is a requir4ed element. Therefor, I find it hard to believe that, in the long run, undermine hundreds of years of contract law by allowing extra obligations only seen post-purchase.
- dctoedt 11y ago
  > I am not making copies by using the software. That's not how the law (in the U.S.) sees it. When you load software into RAM to run the program, you're making a copy, which requires a license from the copyright owner --- and that license can restrict the extent to which you're allowed to use the software (e.g., no service-bureau use). [1] [2] > I have zero need for a license. As you seem to recognize, but for the benefit of any other readers who don't know: The copyright owner's exclusive rights aren't limited to the making of copies -- those rights also extend, e.g., to the distribution of copies and to the creation of derivative works. [3] [1] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Comp.... [2] Congress enacted an exception in the case of computer repairs; see id. [3] https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106