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The error is using a pejorative term of FUD to identify uncertainties that are routine in every legal review ever performed. What you’re saying is you have a di

by cic48 6y ago

The error is using a pejorative term of FUD to identify uncertainties that are routine in every legal review ever performed. What you’re saying is you have a different risk assessment for your business and you’d take the advice and proceed anyway. That’s your prerogative. That does not extend to “different assessments from my own are objectively wrong,” which is what calling them FUD implies. Engineers seek hard truth, which is why the malleable truth of contract and license law is ever elusive. They’re different takes on truth.

KingOfCoders 6y ago
When working for eBay I've asked our legal department "So if we do this, are when then safe?" - The answer was always "The court decides, before that noone knows."
- AnthonyMouse 6y ago
  Right. That's really the issue -- it's not that the risk isn't there, it's that the risk is always there, so it's an isolated demand for rigor. For example, here's the Windows 10 license: > c. Restrictions. The device manufacturer or installer and Microsoft reserve all rights (such as rights under intellectual property laws) not expressly granted in this agreement. For example, this license does not give you any right to, and you may not: ... > (v) use the software as server software, for commercial hosting, make the software available for simultaneous use by multiple users over a network, install the software on a server and allow users to access it remotely, or install the software on a device for use only by remote users; With people staying home because of COVID-19, a lot of companies with Windows desktops (with all their line of business software on them) have been having their employees access them from home, exclusively remotely with no local users. Are they now in violation of the license? Do you want to have to find out in court? It's an excuse which is present anywhere for any non-trivial terms and used as FUD in contexts where someone wants to scare others away from something.
  - kube-system 6y ago
    RDP and other remote desktop technologies has been in use enterprise for decades and it has never been a legal concern. That clause is meant to prevent people from doing unlicensed workarounds of terminal server, and it's not a concern for people doing remote access to a single-user desktop PC. From the same EULA: > (v) Remote access. No more than once every 90 days, you may designate a single user who physically uses the licensed device as the licensed user. The licensed user may access the licensed device from another device using remote access technologies. Other users, at different times, may access the licensed device from another device using remote access technologies, but only on devices separately licensed to run the same or higher edition of this software
    - AnthonyMouse 6y ago
      You're just making the same argument as the article -- that it doesn't really mean that. The clause you're referring to says you can designate a user, but that could have to be the same user who uses the machine locally, and then they can also use it remotely. The first clause still proscribes use "on a device for use only by remote users" -- so maybe remote use is only allowed when local use is also present. Has this theory been tested in court? Do you want to be the one to test it? And common practice doesn't save you. Lots of companies use [A]GPL software too. Look what the Federal Circuit did with API copyrightability -- everybody had been assuming that wasn't the case forever. And maybe they're right to, if another court overrules it or narrows it into nothing or a new law is passed before it matters for anybody else, or maybe not. Uncertainty is the default. Which is terrible, but nonetheless.
      - kube-system 6y ago
        A PC at a desk with a keyboard and mouse is very clearly not a device "device for use only by remote users". The person used their PC when they were in office, and would be using it if not for the current pandemic. If the device is sitting in a rack in a closet, that is a device intended for use only by remote users.

by cic48 6y ago

KingOfCoders 6y ago

When working for eBay I've asked our legal department "So if we do this, are when then safe?" - The answer was always "The court decides, before that noone knows."

AnthonyMouse 6y ago
Right. That's really the issue -- it's not that the risk isn't there, it's that the risk is always there, so it's an isolated demand for rigor. For example, here's the Windows 10 license: > c. Restrictions. The device manufacturer or installer and Microsoft reserve all rights (such as rights under intellectual property laws) not expressly granted in this agreement. For example, this license does not give you any right to, and you may not: ... > (v) use the software as server software, for commercial hosting, make the software available for simultaneous use by multiple users over a network, install the software on a server and allow users to access it remotely, or install the software on a device for use only by remote users; With people staying home because of COVID-19, a lot of companies with Windows desktops (with all their line of business software on them) have been having their employees access them from home, exclusively remotely with no local users. Are they now in violation of the license? Do you want to have to find out in court? It's an excuse which is present anywhere for any non-trivial terms and used as FUD in contexts where someone wants to scare others away from something.
- kube-system 6y ago
  RDP and other remote desktop technologies has been in use enterprise for decades and it has never been a legal concern. That clause is meant to prevent people from doing unlicensed workarounds of terminal server, and it's not a concern for people doing remote access to a single-user desktop PC. From the same EULA: > (v) Remote access. No more than once every 90 days, you may designate a single user who physically uses the licensed device as the licensed user. The licensed user may access the licensed device from another device using remote access technologies. Other users, at different times, may access the licensed device from another device using remote access technologies, but only on devices separately licensed to run the same or higher edition of this software
  - AnthonyMouse 6y ago
    You're just making the same argument as the article -- that it doesn't really mean that. The clause you're referring to says you can designate a user, but that could have to be the same user who uses the machine locally, and then they can also use it remotely. The first clause still proscribes use "on a device for use only by remote users" -- so maybe remote use is only allowed when local use is also present. Has this theory been tested in court? Do you want to be the one to test it? And common practice doesn't save you. Lots of companies use [A]GPL software too. Look what the Federal Circuit did with API copyrightability -- everybody had been assuming that wasn't the case forever. And maybe they're right to, if another court overrules it or narrows it into nothing or a new law is passed before it matters for anybody else, or maybe not. Uncertainty is the default. Which is terrible, but nonetheless.
    - kube-system 6y ago
      A PC at a desk with a keyboard and mouse is very clearly not a device "device for use only by remote users". The person used their PC when they were in office, and would be using it if not for the current pandemic. If the device is sitting in a rack in a closet, that is a device intended for use only by remote users.