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> That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. ..

> That happened when Hancom issued a motion to dismiss the case on the grounds that the company didn’t sign anything, so the license wasn’t a real contract. ... so they admitted to the court that they willfully used the software without a license to do so?

iplaw 9y ago
This is what happens when you hire short-sighted attorneys with an unreasonable expectation of success. What's funny is that Hancom is essentially arguing that shrink-wrap licenses (contracts) are unenforceable. Ghostscript was open sourced under the GNU GPL which states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL. Integrated the software into their own closed-source software and distributing said closed-source software is unquestionable use. At the same time, you can guarantee that Hancom would fully enforce their own shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.
- davidgerard 9y ago
  > states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL Not quite technically! The way it works is: you have no permission by default under copyright. The only permission you have to copy is the GPL. If you obey it, fine. If not, you're just violating copyright like any other copyright violation. This can be an important point: it's a license, not a contract. It may be unfortunate that the judgement uses the word "contract", presumably because that's the word the defendant used.
  - iplaw 9y ago
    A license is a contract. I don't understand the artificial distinction between the two, specifically in reference to GNU GPL. http://www.technollama.co.uk/a-licence-or-a-contract http://www.technollama.co.uk/a-licence-or-a-contract
    - Spivak 9y ago
      Because, as your article points out, in the US there is a requirement for consideration. Sure, the GPL might be a contract somewhere outside of the US but who cares? The ruling was in California.
    - LoSboccacc 9y ago
      I like how correct comments like yours around here every time gpl comes up are downvoted to oblivion. shows there's load work to do from the eff to educate people at wtf gpl is
      - qb45 9y ago
        Well, that's what happens when people use wrong terminology and instead of explaining or suggesting fixes you just go "nope, you are wrong, every X is Y because Z says so". And I didn't downvote this post, btw. On a tangential note, there's also a load of work to do from somebody to educate you wtf EFF is and why it doesn't care about the GPL and who actually does care ;)
      - cygx 9y ago
        there's load work to do from the eff FSF
- rlpb 9y ago
  There is an enormous legal difference between shinkwrap licenses that limit your terms, and a license that grants you additional permissions. Your typical "EULA" is the former type. Copyleft licenses like the GNU GPL are the latter type. A typical "EULA" attempts to reduce your rights, without any further consideration from you (you'll have already paid for it, etc). If you disagree, the authors like to claim that you are bound by their more restrictive terms anyway. That is what is legally dubious. A copyleft license does the opposite: the software comes with an offer to grant you additional permissions should you choose to accept its terms. You have the option to decline, and nobody is claiming that your rights are in any way further restricted if you choose to decline. Put another way, you are free to use GPL software without accepting the terms of the license. But if you don't accept the terms, then you violate copyright law every time you make copies of it.
  - emodendroket 9y ago
    I don't think there is legally such a distinction.
    - cygx 9y ago
      Premise: You have legally obtained a copy of some software. Status quo: You can use the software. You're not allowed to redistribute copies or modified versions of the software. EULA: You may only use the software if you agree to additional terms. Usage rights are restricted. GPL: You may redistribute copies as well as modified versions as long as distribution happens under the terms of the GPL. Distribution rights are granted.
      - emodendroket 9y ago
        What about the disclaimer of warranty and limitation of liability?
        cygx 9y ago
        That's a question that has to be answered by lawyers and judges. Personally, I doubt that blanket disclaimers really do much of anything in my jurisdiction.
- PeterisP 9y ago
  Shrink-wrap licences are unenforceable in many jurisdictions. However, GPL still works in such jurisdictions since if you claim that you don't accept GPL then you're violating the copyright law by distributing without a licence to do so. General shrink-wrap licences can't use this logic because (in those jurisdictions?) using software or service doesn't require a licence, unlike copying.
  - sqeaky 9y ago
    I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. I am pretty sure contracts are valid regardless of the amount of copying and pasting used to make them. "Post-purchase agreements" are not enforceable in many jurisdictions because they add terms that one side of the agreement did not agree to and many terms of service fall into the post purchase agreement category. It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred.
    - dragonwriter 9y ago
      > I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. “shrink-wrap license” is a term (that has been used in legal writing on the subject, though it doesn't originate as legal jargon) for a license agreement included within the packaging (which historically was I usually shrink-wrapped, preventing the a customer from reviewing the license text prior a to purchase) of software product that is purported to be a condition of use of the software and which purports to be accepted by use, opening the package, or purchasing the product. (“Click-wrap” has similarly been used for similar licenses included electronically with software that purports to be accepted by clicking through something in the install process.) > It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred. Purchase may or may not occur with open source licenses; it may be true that it rarely occurs, though the FSF continues to promote sale of Free software as a viable thing.
    - PeterisP 9y ago
      Open source licences IMHO should be viewed not as agreements, but as offers of agreement. You're free to accept the offer, which then implies certain obligations described in the agreement. You're also free not to accept the offer, which implies the default conditions set by law, i.e., copying and distribution is prohibited without explicit permission of the author(s). For example, anyone certainly can ignore the provisions of GPL and redistribute the software as closed source if they have obtained some other licence from all the authors.
- emodendroket 9y ago
  A lawyer's job is ultimately to present the strongest case that they are able. If the strongest case they are able to present is not very strong I guess they're in trouble.
tzs 9y ago
Probably not. We are dealing with a pre-trial motion by the defendant for dismissal. They are just implicitly admitting that plaintiff alleges that defendant used the software without a license, not that they actually did so. To decide such a motion the court assumes that every fact alleged by the plaintiff is true, and then looks at each charge to see if all the necessary facts to support that charge are covered. If some charge is not covered, then that charge can be dismissed. So what is happening here, it sounds like, is that the defendant is saying that plaintiff did not allege that defendant signed anything, and the defendant seems to think (for some reason I do not understand...) that you have to sign something in order to have a contract, and so wants the court to dismiss any charges that require there to be contract. The court said that plaintiff has in fact alleged sufficient facts for there to be a contract, so denied the motion to dismiss.
- nolemurs 9y ago
  > the defendant seems to think (for some reason I do not understand...) that you have to sign something in order to have a contract I know, right? I'm really baffled that any lawyer would even try that argument. That's like, first or second week of first semester contract law right there.
kevindqc 9y ago
Nice! By that logic it means EULA are not enforceable! I just clicked Accept, I didn't sign anything! Or a cat could've clicked that Accept button, or a toddler
- smichel17 9y ago
  Courts -- at least US ones -- generally treat digital signatures the same as physical ones. Not sure off hand whether clicking accept is the equivalent of signing if you don't type your name.
  - nolemurs 9y ago
    It's actually a bit of a misconception that signatures (digital or otherwise) have any particular legal significance. A contract just requires an agreement between some parties. Signatures only matter to the extent that they serve as proof of an agreement. You can't go into court and say "yes, I agreed to the contract, but I never signed it." That's a losing argument. You can, on the other hand, totally go into court and argue "Yes I signed the contract, but I never agreed to it!" That's obviously not an easy argument to make, and you'll need to give a pretty compelling argument if you want a shot at winning, but fundamentally, the signature is just evidence of an agreement, not some legal requirement. So, clicking 'accept' on a EULA is solidly in a gray area. Everyone knows that no one reads the terms before clicking, so if the EULA has you signing away your first born, you can totally argue "yeah, I clicked the EULA, but I didn't agree to THAT" and probably win. On the other hand, clicking the EULA does mean that you're on notice that you've agreed to something. If the EULA is just the standard stuff that you'd expect to find in it, then a court is likely to enforce the terms.
    - kevindqc 9y ago
      Interesting, thanks!
- iiv 9y ago
  But EULA _are_ (generally) not enforcable. It obviously depends, sometimes it is and sometimes not. I know for example in Sweden EUla are not enforcable at all.

iplaw 9y ago

This is what happens when you hire short-sighted attorneys with an unreasonable expectation of success. What's funny is that Hancom is essentially arguing that shrink-wrap licenses (contracts) are unenforceable. Ghostscript was open sourced under the GNU GPL which states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL. Integrated the software into their own closed-source software and distributing said closed-source software is unquestionable use. At the same time, you can guarantee that Hancom would fully enforce their own shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.

davidgerard 9y ago
> states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL Not quite technically! The way it works is: you have no permission by default under copyright. The only permission you have to copy is the GPL. If you obey it, fine. If not, you're just violating copyright like any other copyright violation. This can be an important point: it's a license, not a contract. It may be unfortunate that the judgement uses the word "contract", presumably because that's the word the defendant used.
- iplaw 9y ago
  A license is a contract. I don't understand the artificial distinction between the two, specifically in reference to GNU GPL. http://www.technollama.co.uk/a-licence-or-a-contract http://www.technollama.co.uk/a-licence-or-a-contract
  - Spivak 9y ago
    Because, as your article points out, in the US there is a requirement for consideration. Sure, the GPL might be a contract somewhere outside of the US but who cares? The ruling was in California.
  - LoSboccacc 9y ago
    I like how correct comments like yours around here every time gpl comes up are downvoted to oblivion. shows there's load work to do from the eff to educate people at wtf gpl is
    - qb45 9y ago
      Well, that's what happens when people use wrong terminology and instead of explaining or suggesting fixes you just go "nope, you are wrong, every X is Y because Z says so". And I didn't downvote this post, btw. On a tangential note, there's also a load of work to do from somebody to educate you wtf EFF is and why it doesn't care about the GPL and who actually does care ;)
    - cygx 9y ago
      there's load work to do from the eff FSF
rlpb 9y ago
There is an enormous legal difference between shinkwrap licenses that limit your terms, and a license that grants you additional permissions. Your typical "EULA" is the former type. Copyleft licenses like the GNU GPL are the latter type. A typical "EULA" attempts to reduce your rights, without any further consideration from you (you'll have already paid for it, etc). If you disagree, the authors like to claim that you are bound by their more restrictive terms anyway. That is what is legally dubious. A copyleft license does the opposite: the software comes with an offer to grant you additional permissions should you choose to accept its terms. You have the option to decline, and nobody is claiming that your rights are in any way further restricted if you choose to decline. Put another way, you are free to use GPL software without accepting the terms of the license. But if you don't accept the terms, then you violate copyright law every time you make copies of it.
- emodendroket 9y ago
  I don't think there is legally such a distinction.
  - cygx 9y ago
    Premise: You have legally obtained a copy of some software. Status quo: You can use the software. You're not allowed to redistribute copies or modified versions of the software. EULA: You may only use the software if you agree to additional terms. Usage rights are restricted. GPL: You may redistribute copies as well as modified versions as long as distribution happens under the terms of the GPL. Distribution rights are granted.
    - emodendroket 9y ago
      What about the disclaimer of warranty and limitation of liability?
      - cygx 9y ago
        That's a question that has to be answered by lawyers and judges. Personally, I doubt that blanket disclaimers really do much of anything in my jurisdiction.
PeterisP 9y ago
Shrink-wrap licences are unenforceable in many jurisdictions. However, GPL still works in such jurisdictions since if you claim that you don't accept GPL then you're violating the copyright law by distributing without a licence to do so. General shrink-wrap licences can't use this logic because (in those jurisdictions?) using software or service doesn't require a licence, unlike copying.
- sqeaky 9y ago
  I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. I am pretty sure contracts are valid regardless of the amount of copying and pasting used to make them. "Post-purchase agreements" are not enforceable in many jurisdictions because they add terms that one side of the agreement did not agree to and many terms of service fall into the post purchase agreement category. It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred.
  - dragonwriter 9y ago
    > I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. “shrink-wrap license” is a term (that has been used in legal writing on the subject, though it doesn't originate as legal jargon) for a license agreement included within the packaging (which historically was I usually shrink-wrapped, preventing the a customer from reviewing the license text prior a to purchase) of software product that is purported to be a condition of use of the software and which purports to be accepted by use, opening the package, or purchasing the product. (“Click-wrap” has similarly been used for similar licenses included electronically with software that purports to be accepted by clicking through something in the install process.) > It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred. Purchase may or may not occur with open source licenses; it may be true that it rarely occurs, though the FSF continues to promote sale of Free software as a viable thing.
  - PeterisP 9y ago
    Open source licences IMHO should be viewed not as agreements, but as offers of agreement. You're free to accept the offer, which then implies certain obligations described in the agreement. You're also free not to accept the offer, which implies the default conditions set by law, i.e., copying and distribution is prohibited without explicit permission of the author(s). For example, anyone certainly can ignore the provisions of GPL and redistribute the software as closed source if they have obtained some other licence from all the authors.
emodendroket 9y ago
A lawyer's job is ultimately to present the strongest case that they are able. If the strongest case they are able to present is not very strong I guess they're in trouble.

tzs 9y ago

Probably not. We are dealing with a pre-trial motion by the defendant for dismissal. They are just implicitly admitting that plaintiff alleges that defendant used the software without a license, not that they actually did so. To decide such a motion the court assumes that every fact alleged by the plaintiff is true, and then looks at each charge to see if all the necessary facts to support that charge are covered. If some charge is not covered, then that charge can be dismissed. So what is happening here, it sounds like, is that the defendant is saying that plaintiff did not allege that defendant signed anything, and the defendant seems to think (for some reason I do not understand...) that you have to sign something in order to have a contract, and so wants the court to dismiss any charges that require there to be contract. The court said that plaintiff has in fact alleged sufficient facts for there to be a contract, so denied the motion to dismiss.

nolemurs 9y ago
> the defendant seems to think (for some reason I do not understand...) that you have to sign something in order to have a contract I know, right? I'm really baffled that any lawyer would even try that argument. That's like, first or second week of first semester contract law right there.

kevindqc 9y ago

Nice! By that logic it means EULA are not enforceable! I just clicked Accept, I didn't sign anything! Or a cat could've clicked that Accept button, or a toddler

smichel17 9y ago
Courts -- at least US ones -- generally treat digital signatures the same as physical ones. Not sure off hand whether clicking accept is the equivalent of signing if you don't type your name.
- nolemurs 9y ago
  It's actually a bit of a misconception that signatures (digital or otherwise) have any particular legal significance. A contract just requires an agreement between some parties. Signatures only matter to the extent that they serve as proof of an agreement. You can't go into court and say "yes, I agreed to the contract, but I never signed it." That's a losing argument. You can, on the other hand, totally go into court and argue "Yes I signed the contract, but I never agreed to it!" That's obviously not an easy argument to make, and you'll need to give a pretty compelling argument if you want a shot at winning, but fundamentally, the signature is just evidence of an agreement, not some legal requirement. So, clicking 'accept' on a EULA is solidly in a gray area. Everyone knows that no one reads the terms before clicking, so if the EULA has you signing away your first born, you can totally argue "yeah, I clicked the EULA, but I didn't agree to THAT" and probably win. On the other hand, clicking the EULA does mean that you're on notice that you've agreed to something. If the EULA is just the standard stuff that you'd expect to find in it, then a court is likely to enforce the terms.
  - kevindqc 9y ago
    Interesting, thanks!
iiv 9y ago
But EULA _are_ (generally) not enforcable. It obviously depends, sometimes it is and sometimes not. I know for example in Sweden EUla are not enforcable at all.