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AIUI, the author is agreeing with you, saying that case law says that licenses are contracts and that FOSS advocates should adopt that position.

hnfong 3y ago
I typed my original comment on my phone and now I read it it seems a bit unclear what I was trying to say. Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)
- f33d5173 3y ago
  EULAs conventionally use shrink wrap to get you to agree with them: "click this checkmark, or else the software won't allow you to use it". If I patch out the checkbox, then I never have to agree to the contract, and I can use the software without worry. With a license, I need to agree to it to be legally allowed to use the software in the first place. I don't see how a license as a contract harms any of this. A license is a sort of contract, where I do my part (distribute source alongside binaries, say), and in exchange I get something (the right to distribute the software). If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all.
  - dataflow 3y ago
    > If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all. What is the legal basis for the default position here? (By which I mean the idea that you have no right to use something that hasn't been licensed to you.) I think I understand the legal basis for the idea that it's illegal to copy something whose copyright isn't licensed to you, but if you already have a copy legally before accepting the license - what prevents you from doing whatever you want with it?
    - comex 3y ago
      The argument is that whoever provided you the installer is ‘morally speaking’ providing you the software on the condition that you accept the agreement, and the fact that you physically receive the software before completing the transaction is just an implementation detail. This is largely based on ProCD v. Zeidenberg: https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg That case involved a literal shrinkwrapped product – a piece of software sold on CD-ROM in the 90s – where the contract was stored on the CD-ROM and thus could not even be reviewed without breaking the shrinkwrap, which in turn could only happen after buying the package from a retailer. If the purchaser read the license and decided not to accept, they would have spent their money on nothing. But the contract instructed purchasers to return the package if they didn’t agree to it, and purchasers apparently had the opportunity to do so and get their money back, and the court decided that was good enough. If a purchaser chose not to return the package and instead continued to use the software after seeing the license, they could be considered to have accepted the contract. That said, the purchaser in that case did check an “I agree” box in the installer rather than try to bypass it – but at least based on the Wikipedia article, it sounds like that fact wasn’t as crucial to the outcome as one might expect.
      - dataflow 3y ago
        I've seen that case before actually. But as I understand it, it was important that there was an indication of the existence of the license on the packaging, which people could view prior to purchase - it means you implicitly voluntarily agreed to that contract on the box before you purchased the copy. That is not quite the same thing as claiming you don't have a right to use something without a license, hence my question. If someone gives you a copy of the software without any indication that it comes with any sort of license at all, and you patched it to bypass the agreement that popped up after you ran it, what did you violate exactly? You got the software without agreeing to anything, so what's the legal basis for the idea that you can't patch it and use it without agreeing to the license?
        prirun 3y ago
kemitchell 3y ago
Hey, gavinhoward. Good to see your nick again. If I were going to summarize my mental model overall, I would say that terms like GPL pasted into license notices for published source code memorialize the terms of contracts that grant licenses. In the jargon, the deals between developers, users, and distributors are "license agreements". The argument against revocation at will is either reliance or consideration---contract doctrines. If there's ambiguity or vagueness in the terms, it will be argued under rules of construction---again contract doctrines---not statutory interpretation or some copyright-specific scheme. Claims for exceeding the license or breaking rules in the terms will be infringement when preempted and breach otherwise, with a lot of work still to be done sharpening lines like the "extra element test" and "substantial use restrictions". The defense to plead against an infringement claim is license---a property concept. The fundamental error of "license, not contract" is really the underlying idea that they're mutually exclusive. They're really integral and complementary. Between private parties, contracts are the means by which licenses are given and received. When writing specifically about the GPLs, the claims are usually about the source code requirement. I can slip into just saying "contract" because that's where I see those claims heading.
- gavinhoward 3y ago
  Understood, thank you. Sorry for missing some of those details in your post. I'm going to ensure my licenses make it clear that they are contracts, including with anyone the software is distributed to.
  - kemitchell 3y ago
    You might find the "Acceptance" section of the Blue Oak Model License handy: https://blueoakcouncil.org/license/1.0.0#acceptance https://blueoakcouncil.org/license/1.0.0#acceptance We've published a very liberal license for use of the Blue Oak license text, as well: https://blueoakcouncil.org/license/1.0.0#permission https://blueoakcouncil.org/license/1.0.0#permission
    - gavinhoward 3y ago
      As it turns out, my licenses are based on the Blue Oak License. (That's why I originally asked you to be the lawyer to look over them!) Are you saying the "Acceptance" section is what turns it into a contract? I'll ask my lawyer about this, but as a lawyer who is NOT my lawyer, do you think that preemption would still be a problem if the SFC was suing under the Blue Oak License? By the way, thank you for the liberal license; that was one big reason I started with Blue Oak.

hnfong 3y ago

I typed my original comment on my phone and now I read it it seems a bit unclear what I was trying to say. Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)

f33d5173 3y ago
EULAs conventionally use shrink wrap to get you to agree with them: "click this checkmark, or else the software won't allow you to use it". If I patch out the checkbox, then I never have to agree to the contract, and I can use the software without worry. With a license, I need to agree to it to be legally allowed to use the software in the first place. I don't see how a license as a contract harms any of this. A license is a sort of contract, where I do my part (distribute source alongside binaries, say), and in exchange I get something (the right to distribute the software). If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all.
- dataflow 3y ago
  > If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all. What is the legal basis for the default position here? (By which I mean the idea that you have no right to use something that hasn't been licensed to you.) I think I understand the legal basis for the idea that it's illegal to copy something whose copyright isn't licensed to you, but if you already have a copy legally before accepting the license - what prevents you from doing whatever you want with it?
  - comex 3y ago
    The argument is that whoever provided you the installer is ‘morally speaking’ providing you the software on the condition that you accept the agreement, and the fact that you physically receive the software before completing the transaction is just an implementation detail. This is largely based on ProCD v. Zeidenberg: https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg That case involved a literal shrinkwrapped product – a piece of software sold on CD-ROM in the 90s – where the contract was stored on the CD-ROM and thus could not even be reviewed without breaking the shrinkwrap, which in turn could only happen after buying the package from a retailer. If the purchaser read the license and decided not to accept, they would have spent their money on nothing. But the contract instructed purchasers to return the package if they didn’t agree to it, and purchasers apparently had the opportunity to do so and get their money back, and the court decided that was good enough. If a purchaser chose not to return the package and instead continued to use the software after seeing the license, they could be considered to have accepted the contract. That said, the purchaser in that case did check an “I agree” box in the installer rather than try to bypass it – but at least based on the Wikipedia article, it sounds like that fact wasn’t as crucial to the outcome as one might expect.
    - dataflow 3y ago
      I've seen that case before actually. But as I understand it, it was important that there was an indication of the existence of the license on the packaging, which people could view prior to purchase - it means you implicitly voluntarily agreed to that contract on the box before you purchased the copy. That is not quite the same thing as claiming you don't have a right to use something without a license, hence my question. If someone gives you a copy of the software without any indication that it comes with any sort of license at all, and you patched it to bypass the agreement that popped up after you ran it, what did you violate exactly? You got the software without agreeing to anything, so what's the legal basis for the idea that you can't patch it and use it without agreeing to the license?
      - prirun 3y ago

kemitchell 3y ago

Hey, gavinhoward. Good to see your nick again. If I were going to summarize my mental model overall, I would say that terms like GPL pasted into license notices for published source code memorialize the terms of contracts that grant licenses. In the jargon, the deals between developers, users, and distributors are "license agreements". The argument against revocation at will is either reliance or consideration---contract doctrines. If there's ambiguity or vagueness in the terms, it will be argued under rules of construction---again contract doctrines---not statutory interpretation or some copyright-specific scheme. Claims for exceeding the license or breaking rules in the terms will be infringement when preempted and breach otherwise, with a lot of work still to be done sharpening lines like the "extra element test" and "substantial use restrictions". The defense to plead against an infringement claim is license---a property concept. The fundamental error of "license, not contract" is really the underlying idea that they're mutually exclusive. They're really integral and complementary. Between private parties, contracts are the means by which licenses are given and received. When writing specifically about the GPLs, the claims are usually about the source code requirement. I can slip into just saying "contract" because that's where I see those claims heading.

gavinhoward 3y ago
Understood, thank you. Sorry for missing some of those details in your post. I'm going to ensure my licenses make it clear that they are contracts, including with anyone the software is distributed to.
- kemitchell 3y ago
  You might find the "Acceptance" section of the Blue Oak Model License handy: https://blueoakcouncil.org/license/1.0.0#acceptance https://blueoakcouncil.org/license/1.0.0#acceptance We've published a very liberal license for use of the Blue Oak license text, as well: https://blueoakcouncil.org/license/1.0.0#permission https://blueoakcouncil.org/license/1.0.0#permission
  - gavinhoward 3y ago
    As it turns out, my licenses are based on the Blue Oak License. (That's why I originally asked you to be the lawyer to look over them!) Are you saying the "Acceptance" section is what turns it into a contract? I'll ask my lawyer about this, but as a lawyer who is NOT my lawyer, do you think that preemption would still be a problem if the SFC was suing under the Blue Oak License? By the way, thank you for the liberal license; that was one big reason I started with Blue Oak.