8 ms·

There is an enormous legal difference between shinkwrap licenses that limit your terms, and a license that grants you additional permissions. Your typical "EULA

by 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.
    - belorn 9y ago
      Disclaimer and limitation of liability is a very old legal aspect about trade law which from a US perspective historically originate from UK law before the time of colonization. It has nothing to do with copyright or technology. As the story go, someone bought a mill shaft but the delivery was delayed and the customer sued the seller and wanted compensation for the delay. This in turn lead to a legal requirement to make the customer aware of limitations. When the US organization for trade (a name which is escaping me) made their recommendation based on the version of law which was "copied" over, they added that one way to do so could be to use all caps or by changing the color or font, which companies adapted by simply picking the first suggestion. The distance of the original case of the mill shaft and some open source software thats public available on the Internet for free is quite a far one.
      - emodendroket 9y ago
        OK, but so what? It still in some sense restricts the rights of the person using the software.
        cygx 9y ago
        In what sense? You can still use the software, you just can't expect its use to yield a particular result and sue the programmer if it doesn't live up to that expectation.
        emodendroket 9y ago
        In exactly the sense you just stated.
        cygx 9y ago
        That doesn't really affect your rights: You still own the program, you may still use the program, and you may even still sue the software vendor if the program doesn't work as expected. What the disclaimer is supposed to achieve is state that there was no contractual obligation to deliver a piece of working software. For software distributed free of charge, this might be viable, but I would find it rather surprising if such an obligation wasn't automatically implied to at least some degree by any commercial sale. But this is above my pay grade as I'm not a legal professional or even amateur, for that matter.
- tialaramex 9y ago
  In contract law it is essential that both sides get something of value out of the deal. If not, it's not a contract. This is called "consideration" and it's why e.g. you'll see on the news people pay a symbolic $1 for a failing business or a tumbledown building rather than nothing at all. For example you can't make a contract in which I just pay you $50 per year. But you can have a contract in which I pay you $50 per year and in exchange you deliver me a girl scout cookie on the 7th of November every year. The court doesn't (usually) care whether the deal made is a good idea, $50 for a girl scout cookie seems like terrible value, but it _is_ an exchange of two things of value. Because the GPL spells out what you're getting and what you're swapping for it, it will always satisfy this idea of consideration. In contrast very often "click through" or "shrinkwrap" licenses don't really do so.
  - palunon 9y ago
    (Note: this isn't true in most civil law jurisdictions)
  - emodendroket 9y ago
    I don't know about that. You're getting the right to use the software, which otherwise you don't have.
    - rlpb 9y ago
      > ...which otherwise you don't have. Why not? If I own a chair, I have the right to use it. If I own a copy of the software (that I paid for in a store, for example), then there is nothing in law that says that I cannot use it. I have rights over what I own. Nothing restricts that. Copyright law exists to protect software writers by providing them with a means to make money making software. This law restricts my ability to make copies. There is no law that restricts my ability to use what I own.
      - emodendroket 9y ago
        Well obviously their contention is that you're buying a license to use the software and not the software itself. You're free to disagree but it's internally consistent.
- ninkendo 9y ago
  Agreed, I would like to see some legal precident that proves GP's point. Additionally, GPL only grants you "additional freedoms" if you're willing to reciprocate. If you want to use it in a closed source work, it very much limits your freedoms. The phrase "permissive license" exist for a reason, and it explicitly excludes the GPL.
  - qb45 9y ago
    > If you want to use it in a closed source work, it very much limits your freedoms. It's the copyright law which prevents you from using GPL software in closed source works, not the GPL. GPL doesn't care about proprietary software at all, leaving it at the mercy of status quo. It only grants some additional rights to users and developers of free software.
xorblurb 9y ago
There is no such thing as an EULA attempting to limit your terms. Without a licence, you have no right at all.
- qb45 9y ago
  > Without a licence, you have no right at all. On what grounds do you have no right to use a copy of software you bought without obtaining an additional license from the vendor? As for copying it's copyright, obviously, but I never understood what's the matter with merely using. IANAL but AFAIK in some EU countries it is recognized that there is no legal basis for EULAs and they officially are void, unless signed as a contract prior to the purchase, of course.
  - zAy0LfpBZLC8mAC 9y ago
    > unless signed as a contract prior to the purchase, of course. Not quite. There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract). On the other hand, if you do indeed sign an additional contract afterwards on your free will that limits your rights, that might very well be enforcable. But the point is that there is no legal necessity to sign such a contract in order to use the software that you have bought.
    - qb45 9y ago
      > There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract). Yes, it doesn't have to be literally signed, but it needs to be an agreement made at the time of purchase. If I agree to buy Windows under the condition that I won't use it for the development of nuclear weapons, so be it. But it's still not clear why I would need Microsoft's license just to use a copy of Windows I have already bought, sometimes even as part of a computer, which is what parent seemed to claim.
roel_v 9y ago
What are you talking about? There is no such distinction. The GPL derives its enforcability from the same principle EULA's do.
- pas 9y ago
  Umm, so when you buy a copy of a proprietary software, why don't you have to sign and/or agree to the EULA? Also, does the seller have to reimburse you if you decline the license (and of course return the copy)? So you pay for the copy but not for the license, and you got the license free if you paid for the copy, right? (But of course that license comes with a lot of restrictions, just like the GPL.) But the important thing seems to be that the GPL binds distributors. It's a contract between developers and distributors. (Sure, it's a contract between anybody that acquires a copy.) Is there a coherent legal overview of this?
  - roel_v 9y ago
    You usually have to agree to some EULA. It's part of the contract. Second q depends on whether you could have known what's in the EULA before you bought it. They're not separate things. There is no such thing as 'buying' and 'agreeing to a licence' or anything like that. A 'licence' is just a contract: party A pays $X to party B, in exchange for which party B lets party A copy its IP, under a given set of conditions. 'pay for the copy but not for the licence' is a grammatically correct sentence but meaningless, like when I'd say 'I punch this wall red with my horse'. Copyright is about 'copying', so if that's what you mean by 'distributors', then yes. But so do 'EULA's' and all other IP-related contracts (usually called 'licences'). As to your last question: yes there is, people have written dozens of book about it. Your local university probably has a bunch of them in their library. If you're asking about a website where you can read in a few paragraphs the complete legal context with definitive answers to questions about general cases (i.e., no 'it depends' allowed) - then no, such a thing does not exist. Look at it this way: if a novice programmer goes onto LKML and says 'hey guys, I want to write an OS, can someone point me to an overview' - then at best he'd be pointed to some high-level overview Wikipedia pages, but most likely, people would snicker and press 'delete' (well actually he'd probably receive a bunch of abuse on how he should get off the list, but that's specific to the example I chose...) FWIW, I did read a bunch of book like the ones I mentioned above when I was writing a paper on a EULA-related topic during my law degree, and as a result I don't make any blanket statements about the topic any more.

by rlpb 9y ago

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.
  - belorn 9y ago
    Disclaimer and limitation of liability is a very old legal aspect about trade law which from a US perspective historically originate from UK law before the time of colonization. It has nothing to do with copyright or technology. As the story go, someone bought a mill shaft but the delivery was delayed and the customer sued the seller and wanted compensation for the delay. This in turn lead to a legal requirement to make the customer aware of limitations. When the US organization for trade (a name which is escaping me) made their recommendation based on the version of law which was "copied" over, they added that one way to do so could be to use all caps or by changing the color or font, which companies adapted by simply picking the first suggestion. The distance of the original case of the mill shaft and some open source software thats public available on the Internet for free is quite a far one.
    - emodendroket 9y ago
      OK, but so what? It still in some sense restricts the rights of the person using the software.
      - cygx 9y ago
        In what sense? You can still use the software, you just can't expect its use to yield a particular result and sue the programmer if it doesn't live up to that expectation.
        emodendroket 9y ago
        In exactly the sense you just stated.
        cygx 9y ago
        That doesn't really affect your rights: You still own the program, you may still use the program, and you may even still sue the software vendor if the program doesn't work as expected. What the disclaimer is supposed to achieve is state that there was no contractual obligation to deliver a piece of working software. For software distributed free of charge, this might be viable, but I would find it rather surprising if such an obligation wasn't automatically implied to at least some degree by any commercial sale. But this is above my pay grade as I'm not a legal professional or even amateur, for that matter.
tialaramex 9y ago
In contract law it is essential that both sides get something of value out of the deal. If not, it's not a contract. This is called "consideration" and it's why e.g. you'll see on the news people pay a symbolic $1 for a failing business or a tumbledown building rather than nothing at all. For example you can't make a contract in which I just pay you $50 per year. But you can have a contract in which I pay you $50 per year and in exchange you deliver me a girl scout cookie on the 7th of November every year. The court doesn't (usually) care whether the deal made is a good idea, $50 for a girl scout cookie seems like terrible value, but it _is_ an exchange of two things of value. Because the GPL spells out what you're getting and what you're swapping for it, it will always satisfy this idea of consideration. In contrast very often "click through" or "shrinkwrap" licenses don't really do so.
- palunon 9y ago
  (Note: this isn't true in most civil law jurisdictions)
- emodendroket 9y ago
  I don't know about that. You're getting the right to use the software, which otherwise you don't have.
  - rlpb 9y ago
    > ...which otherwise you don't have. Why not? If I own a chair, I have the right to use it. If I own a copy of the software (that I paid for in a store, for example), then there is nothing in law that says that I cannot use it. I have rights over what I own. Nothing restricts that. Copyright law exists to protect software writers by providing them with a means to make money making software. This law restricts my ability to make copies. There is no law that restricts my ability to use what I own.
    - emodendroket 9y ago
      Well obviously their contention is that you're buying a license to use the software and not the software itself. You're free to disagree but it's internally consistent.
ninkendo 9y ago
Agreed, I would like to see some legal precident that proves GP's point. Additionally, GPL only grants you "additional freedoms" if you're willing to reciprocate. If you want to use it in a closed source work, it very much limits your freedoms. The phrase "permissive license" exist for a reason, and it explicitly excludes the GPL.
- qb45 9y ago
  > If you want to use it in a closed source work, it very much limits your freedoms. It's the copyright law which prevents you from using GPL software in closed source works, not the GPL. GPL doesn't care about proprietary software at all, leaving it at the mercy of status quo. It only grants some additional rights to users and developers of free software.

xorblurb 9y ago

There is no such thing as an EULA attempting to limit your terms. Without a licence, you have no right at all.

qb45 9y ago
> Without a licence, you have no right at all. On what grounds do you have no right to use a copy of software you bought without obtaining an additional license from the vendor? As for copying it's copyright, obviously, but I never understood what's the matter with merely using. IANAL but AFAIK in some EU countries it is recognized that there is no legal basis for EULAs and they officially are void, unless signed as a contract prior to the purchase, of course.
- zAy0LfpBZLC8mAC 9y ago
  > unless signed as a contract prior to the purchase, of course. Not quite. There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract). On the other hand, if you do indeed sign an additional contract afterwards on your free will that limits your rights, that might very well be enforcable. But the point is that there is no legal necessity to sign such a contract in order to use the software that you have bought.
  - qb45 9y ago
    > There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract). Yes, it doesn't have to be literally signed, but it needs to be an agreement made at the time of purchase. If I agree to buy Windows under the condition that I won't use it for the development of nuclear weapons, so be it. But it's still not clear why I would need Microsoft's license just to use a copy of Windows I have already bought, sometimes even as part of a computer, which is what parent seemed to claim.

roel_v 9y ago

What are you talking about? There is no such distinction. The GPL derives its enforcability from the same principle EULA's do.

pas 9y ago
Umm, so when you buy a copy of a proprietary software, why don't you have to sign and/or agree to the EULA? Also, does the seller have to reimburse you if you decline the license (and of course return the copy)? So you pay for the copy but not for the license, and you got the license free if you paid for the copy, right? (But of course that license comes with a lot of restrictions, just like the GPL.) But the important thing seems to be that the GPL binds distributors. It's a contract between developers and distributors. (Sure, it's a contract between anybody that acquires a copy.) Is there a coherent legal overview of this?
- roel_v 9y ago
  You usually have to agree to some EULA. It's part of the contract. Second q depends on whether you could have known what's in the EULA before you bought it. They're not separate things. There is no such thing as 'buying' and 'agreeing to a licence' or anything like that. A 'licence' is just a contract: party A pays $X to party B, in exchange for which party B lets party A copy its IP, under a given set of conditions. 'pay for the copy but not for the licence' is a grammatically correct sentence but meaningless, like when I'd say 'I punch this wall red with my horse'. Copyright is about 'copying', so if that's what you mean by 'distributors', then yes. But so do 'EULA's' and all other IP-related contracts (usually called 'licences'). As to your last question: yes there is, people have written dozens of book about it. Your local university probably has a bunch of them in their library. If you're asking about a website where you can read in a few paragraphs the complete legal context with definitive answers to questions about general cases (i.e., no 'it depends' allowed) - then no, such a thing does not exist. Look at it this way: if a novice programmer goes onto LKML and says 'hey guys, I want to write an OS, can someone point me to an overview' - then at best he'd be pointed to some high-level overview Wikipedia pages, but most likely, people would snicker and press 'delete' (well actually he'd probably receive a bunch of abuse on how he should get off the list, but that's specific to the example I chose...) FWIW, I did read a bunch of book like the ones I mentioned above when I was writing a paper on a EULA-related topic during my law degree, and as a result I don't make any blanket statements about the topic any more.