7 ms·

It would have been weird if they had been unenforceable. As that would mean there is no license to use it at all. And copyright law generally doesn’t work so th

It would have been weird if they had been unenforceable. As that would mean there is no license to use it at all. And copyright law generally doesn’t work so that if you don’t have a license you are free to do whatever. It’s the opposite. No license, no use whatsoever.

smoldesu 5y ago
I agree. There's a lot of buzz about how "it's never been proven in court" and all that, but open source software licensing is so cut and dried at this point that it just ends up sounding silly. If having a license.md file in your source code isn't enforceable, then how do multi-billion dollar apps get away with hiding their terms of use behind several clicks and thousands of lines of incomprehensible legal jargon? It would certainly be fun to watch Big Tech hire their gold-medal mental gymnasts to fight it in court, if nothing else.
- Hamuko 5y ago
  There are probably thousands of terms of service agreements that are not legally binding in the EU. https://europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/index_en.htm https://europa.eu/youreurope/citizens/consumers/unfair-treat... For example, in 2012 the Court of Justice of the European Union declared that reselling digital software is legal no matter what any EULA attached to the software might say. https://www.engadget.com/2012-07-03-eu-court-rules-its-legal-to-resell-digital-games-software.html https://www.engadget.com/2012-07-03-eu-court-rules-its-legal...
  - jeroenhd 5y ago
    That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid. Only the parts of the agreement that violate the local laws can be ignored.
    - luckylion 5y ago
      Wouldn't that only (reliably) be the case if they contain a severability clause stating that, if any clause is found to be invalid, the rest of the license agreement shall remain valid? After all, you're typically agreeing to a package, not individually to each term.
      - brewmarche 5y ago
        Indeed in German law a partially void contract becomes completely void unless it is protected by a severability clause (which means in practice all contracts have them and they usually state that the void part is to be replaced by something with the same or similar economic consequences). Standard form contracts (take it or leave it rules that are distributed to everyone) are exempt from this though (here the void part falls back to default rules).
        namibj 5y ago
        Indeed, the normal threshold for whether a contract was/is an AGB (stnadard form contract; allgemeine geschaeftsbedingungen = general rules of business ~ TOS) is whether it was practically negotiable.
      - deleted 5y ago
        [deleted]
      - GoblinSlayer 5y ago
        No, that effectively enables scams. To prevent scams courts disallow using inability to enforce unlawful clause as a reason to terminate the contract. You typically buy goods, not contracts.
    - kergonath 5y ago
      > That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid. Different people have different ideas of what is reasonable and what is bullshit. Different jurisdictions as well, which is why some clauses in EULAs written by American lawyers are invalid in the EU. > Only the parts of the agreement that violate the local laws can be ignored. That is the whole point: to know for sure which ones you can ignore, you need to test them in court.
  - cge 5y ago
    Another, rather surprising example, is that while almost every proprietary EULA has clauses prohibiting it, reverse engineering, including decompilation, is legal regardless of EULA terms in the EU for several purposes, including interoperability and, apparently, fixing bugs.
  - iso1210 5y ago
    If I buy the latest superman film on DVD and play it, technically I'm making a copy. I don't have to agree to a license to do this, as it wouldn't be a breach of copyright law to make a transitory copy myself for the purposes of using it. I can't copy it to give to someone else though, that would be against copyright law. Likewise if I take some GPL software, I can do whatever I want with it to run it, including copying it into memory. I can't give a copy to anyone else (including derivative works such as a binary) without agreeing to the GPL.
    - seba_dos1 5y ago
      > Likewise if I take some GPL software, I can do whatever I want with it to run it That's true, but unlike the DVD case it's so only because the GPL license explicitly grants you this right. If it didn't, you wouldn't be able to run it at all.
      - iso1210 5y ago
        Based on what?
        seba_dos1 5y ago
        Based on copyright laws. Here in Poland you can even download a copyrighted movie or a song as long as you don't distribute it; you can't however use any software without a license that lets you do it. The GPL licenses explicitly do ("This License explicitly affirms your unlimited permission to run the unmodified Program."). GPL is actually kind of a special case when it comes to licenses since it mostly cares about redistribution in order to implement its copyleft mechanism, but generally licenses are tools used to give users permission to use the software under specified conditions. Without a license (written or verbal), there's no permission to do anything whatsoever. You may be confusing it with using a self-modified copy of code under GPL. Since GPL only cares about sharing the modified source with actual users, you won't have to share your modifications with anyone as long as you remain the only user of that modified work.
        5y ago
scotty79 5y ago
It could turn out that copyright is only enforceable if it involves payment or authorship. So if you don't sue to get paid or to get attribution you don't have a case. This way GPL would be unenforceable.
- ashtonkem 5y ago
  That would hamper all kinds of commercial activities though, as it would effectively make free trials impossible. It also sounds like it would be a pretty radical change to how copyright laws work, but I’m no expert here.
  - arlcode 5y ago
    If the author is effectively payed trough the (expected) purchase later on its probably fine. Or if the author is an employee and gets a salary
- masklinn 5y ago
  > It could turn out that copyright is only enforceable if it involves payment or authorship. That would make any gift of copyrighted material invalid.
  - arlcode 5y ago
    In some countries such copyright assignments are in fact invalid. Germany had to amend the law back in the day to make Open Source legal. Before that it wasn't possible to forgoe payment and even now it's not possible in many cases.
    - em-bee 5y ago
      do you have a reference to that law change? as far as i know only the moral rights can not be given up, but i am unaware that there was an issue with giving away work for free.
      - 5y ago
rndm_access 5y ago
There was a lot of FUD being spread about supposed non enforceable quality of license.
77pt77 5y ago
> It would have been weird if they had been unenforceable. Well, this is a joke decision since no one will verify whether they actually remove the code.
- shukantpal 5y ago
  If someone somehow knew they were using GPL code before the suit, they can easily do the same check after the suit
  - heavyset_go 5y ago
    GPL code can be obfuscated in final products, the code itself would need to be audited for the inclusion of GPL code.
  - 77pt77 5y ago
    That's not really how it works. Obfuscation is trivial.
ikiris 5y ago
there's a healthy overlap between the people who think that open source licenses are unenforcable, and the people who think masks don't work. Its almost all based on "I wish", and not "these fact"
- kergonath 5y ago
  I haven’t run a full study, but I have found the opposite amongst people I know: a large overlap between the people who moan about their freedoms being taken away by vaccine mandates and those who moan about the ideological purity of Free Software. If you see things only in black and white and everything is a crusade, then you don’t care much about facts. I would guess that this is the result of the same mechanisms that prime a conspiracy theorist to see conspiracies everywhere.
  - bonoboTP 5y ago
    RMS is definitely a hypermasker and covid-worrier.
    - GoblinSlayer 5y ago
      Stallman is an a well known outlier, it's a definitely visible correlation that blue people hate free software.

smoldesu 5y ago

I agree. There's a lot of buzz about how "it's never been proven in court" and all that, but open source software licensing is so cut and dried at this point that it just ends up sounding silly. If having a license.md file in your source code isn't enforceable, then how do multi-billion dollar apps get away with hiding their terms of use behind several clicks and thousands of lines of incomprehensible legal jargon? It would certainly be fun to watch Big Tech hire their gold-medal mental gymnasts to fight it in court, if nothing else.

Hamuko 5y ago
There are probably thousands of terms of service agreements that are not legally binding in the EU. https://europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/index_en.htm https://europa.eu/youreurope/citizens/consumers/unfair-treat... For example, in 2012 the Court of Justice of the European Union declared that reselling digital software is legal no matter what any EULA attached to the software might say. https://www.engadget.com/2012-07-03-eu-court-rules-its-legal-to-resell-digital-games-software.html https://www.engadget.com/2012-07-03-eu-court-rules-its-legal...
- jeroenhd 5y ago
  That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid. Only the parts of the agreement that violate the local laws can be ignored.
  - luckylion 5y ago
    Wouldn't that only (reliably) be the case if they contain a severability clause stating that, if any clause is found to be invalid, the rest of the license agreement shall remain valid? After all, you're typically agreeing to a package, not individually to each term.
    - brewmarche 5y ago
      Indeed in German law a partially void contract becomes completely void unless it is protected by a severability clause (which means in practice all contracts have them and they usually state that the void part is to be replaced by something with the same or similar economic consequences). Standard form contracts (take it or leave it rules that are distributed to everyone) are exempt from this though (here the void part falls back to default rules).
      - namibj 5y ago
        Indeed, the normal threshold for whether a contract was/is an AGB (stnadard form contract; allgemeine geschaeftsbedingungen = general rules of business ~ TOS) is whether it was practically negotiable.
    - deleted 5y ago
      [deleted]
    - GoblinSlayer 5y ago
      No, that effectively enables scams. To prevent scams courts disallow using inability to enforce unlawful clause as a reason to terminate the contract. You typically buy goods, not contracts.
  - kergonath 5y ago
    > That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid. Different people have different ideas of what is reasonable and what is bullshit. Different jurisdictions as well, which is why some clauses in EULAs written by American lawyers are invalid in the EU. > Only the parts of the agreement that violate the local laws can be ignored. That is the whole point: to know for sure which ones you can ignore, you need to test them in court.
- cge 5y ago
  Another, rather surprising example, is that while almost every proprietary EULA has clauses prohibiting it, reverse engineering, including decompilation, is legal regardless of EULA terms in the EU for several purposes, including interoperability and, apparently, fixing bugs.
- iso1210 5y ago
  If I buy the latest superman film on DVD and play it, technically I'm making a copy. I don't have to agree to a license to do this, as it wouldn't be a breach of copyright law to make a transitory copy myself for the purposes of using it. I can't copy it to give to someone else though, that would be against copyright law. Likewise if I take some GPL software, I can do whatever I want with it to run it, including copying it into memory. I can't give a copy to anyone else (including derivative works such as a binary) without agreeing to the GPL.
  - seba_dos1 5y ago
    > Likewise if I take some GPL software, I can do whatever I want with it to run it That's true, but unlike the DVD case it's so only because the GPL license explicitly grants you this right. If it didn't, you wouldn't be able to run it at all.
    - iso1210 5y ago
      Based on what?
      - seba_dos1 5y ago
        Based on copyright laws. Here in Poland you can even download a copyrighted movie or a song as long as you don't distribute it; you can't however use any software without a license that lets you do it. The GPL licenses explicitly do ("This License explicitly affirms your unlimited permission to run the unmodified Program."). GPL is actually kind of a special case when it comes to licenses since it mostly cares about redistribution in order to implement its copyleft mechanism, but generally licenses are tools used to give users permission to use the software under specified conditions. Without a license (written or verbal), there's no permission to do anything whatsoever. You may be confusing it with using a self-modified copy of code under GPL. Since GPL only cares about sharing the modified source with actual users, you won't have to share your modifications with anyone as long as you remain the only user of that modified work.
        5y ago

scotty79 5y ago

It could turn out that copyright is only enforceable if it involves payment or authorship. So if you don't sue to get paid or to get attribution you don't have a case. This way GPL would be unenforceable.

ashtonkem 5y ago
That would hamper all kinds of commercial activities though, as it would effectively make free trials impossible. It also sounds like it would be a pretty radical change to how copyright laws work, but I’m no expert here.
- arlcode 5y ago
  If the author is effectively payed trough the (expected) purchase later on its probably fine. Or if the author is an employee and gets a salary
masklinn 5y ago
> It could turn out that copyright is only enforceable if it involves payment or authorship. That would make any gift of copyrighted material invalid.
- arlcode 5y ago
  In some countries such copyright assignments are in fact invalid. Germany had to amend the law back in the day to make Open Source legal. Before that it wasn't possible to forgoe payment and even now it's not possible in many cases.
  - em-bee 5y ago
    do you have a reference to that law change? as far as i know only the moral rights can not be given up, but i am unaware that there was an issue with giving away work for free.
    - 5y ago

rndm_access 5y ago

There was a lot of FUD being spread about supposed non enforceable quality of license.

77pt77 5y ago

> It would have been weird if they had been unenforceable. Well, this is a joke decision since no one will verify whether they actually remove the code.

shukantpal 5y ago
If someone somehow knew they were using GPL code before the suit, they can easily do the same check after the suit
- heavyset_go 5y ago
  GPL code can be obfuscated in final products, the code itself would need to be audited for the inclusion of GPL code.
- 77pt77 5y ago
  That's not really how it works. Obfuscation is trivial.

ikiris 5y ago

there's a healthy overlap between the people who think that open source licenses are unenforcable, and the people who think masks don't work. Its almost all based on "I wish", and not "these fact"

kergonath 5y ago
I haven’t run a full study, but I have found the opposite amongst people I know: a large overlap between the people who moan about their freedoms being taken away by vaccine mandates and those who moan about the ideological purity of Free Software. If you see things only in black and white and everything is a crusade, then you don’t care much about facts. I would guess that this is the result of the same mechanisms that prime a conspiracy theorist to see conspiracies everywhere.
- bonoboTP 5y ago
  RMS is definitely a hypermasker and covid-worrier.
  - GoblinSlayer 5y ago
    Stallman is an a well known outlier, it's a definitely visible correlation that blue people hate free software.