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> 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 a

> 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
    > 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? Isn't this the same thing as unknowingly getting a stolen item from someone? You don't get to keep it just because someone gave it to you.
    - dataflow 3y ago
      Is it? Theft deprives the owner of the item. Having a copy doesn't deprive the owner of the item. I could see it being different.
- spr93 3y ago
  no. that case is about whether notice on shrinkwrap or via a license-acceptance screen can create an enforceable agreement. its not even a copyright issue. morality has nothing to do with contract (or copyright) law in a common law country. no one should think that getting cute by "bypassing" an acceptance screen will make a difference to the outcome, let alone be crucial. what matters is whether the user has sufficient notice that using/proceeding/whatever is agreement, and that they had a chance to know what they were agreeing to. theres no special magic in an "agree" box, except insofar as asking the user to click it contributes to notice that the user is making an agreement.
spr93 3y ago
a few concepts you need to start: copyright is a right to exclude. copyright does not arise from your agreement. the copyright attaches to the protected expression. analogies are dangerous, but these concepts are intuitive if you think in terms of real property. right to exclude: you have the right to exclude most people, under most circumstances, from your house. doesn't arise from agreement: you can let joe into your house without an agreement. you can also kick him out whenever you want, unless you and joe made an agreement that limits your right to exclude him (or a legal exception applies). in our analogy, the agreement might be a lease. (btw, the lease will limit the owner's right to exclude, and it will probably give both sides some non-property--i.e., contractual--rights. telling the two kinds of rights apart is the subject of the article.) there are exceptions, just like there are exceptions in copyright. you know the names of some of them, like fair use. similarly, there are rights for people who don't have a formal lease, and there are rights that exist even if a lease purports to reject them. but what you call the "default position" is the same: the property owner has the right to exclude others. exists wherever the property exists: the right to exclude someone from real property attaches to the land and stays with it. similarly, copyright attaches to the protected expression; the copyright owner's right to exclude is already attached to the copy you have. now you can see why you don't get to do whatever you want with a copy if you don't have an agreement: the copyright already governs your copy. it lets the copyright owner exclude you. if you want protection against that exclusion, then you need to agree to a license. that is, of course, a gross oversimplification. for example, you emphasize "copy", but the copyright owner has other rights, such as the right to prepare derivative works, the right to distribute the work, and the right of public display. the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work, and that in itself would been a copyright violation. on the other hand, just having a copy isn't a copyright violation because "having" isn't a protected right. details like that rarely matter though. i only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.
- dataflow 3y ago
  Thanks for the info. To reply to your points: > I only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics. To be clear, I was never claiming this is legal. I figured well enough that it probably isn't. My question was, what is the legal basis for it. > copyright is a right to exclude Note the comment I replied to wasn't talking about copyright (at least not explicitly). It claimed there is no right to use software without agreeing to its EULA. The entire question here seems to be about whether an EULA is a contract or a (copyright?) license, so that itself isn't clear. But in either case, you presumably have the right to at least copy the work as-is, so I'm assuming no copyright violation is happening at least up to that point. > the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work Your rebuttal hinges on the implementation of the bypass mechanism. I'm trying to get to the heart of the matter, and I don't get the impression it should depend on that (but do correct me if I'm wrong). If you need a concrete implementation to discuss the crux of it, consider this: you can just as well imagine bypassing some program's agreement by modifying the environment around the program, and thus not actually creating a derivative work. (In the simplest case, imagine a naive program that just checks to see if a "is_licensed=true" exists in some config file, and imagine the user setting that manually to bypass the check. The program stays intact.) I think the heart of the question here is: if you know the intention was to make you agree to the license, but you never agreed to do that, and you managed to get the program to get past that point... what exactly did you violate? It certainly doesn't seem like you violated copyright, given you had every right to copy the work. And it doesn't seem wasn't any contract you were bound by - was there? So when/why is that (not) legal?

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
  > 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? Isn't this the same thing as unknowingly getting a stolen item from someone? You don't get to keep it just because someone gave it to you.
  - dataflow 3y ago
    Is it? Theft deprives the owner of the item. Having a copy doesn't deprive the owner of the item. I could see it being different.
spr93 3y ago
no. that case is about whether notice on shrinkwrap or via a license-acceptance screen can create an enforceable agreement. its not even a copyright issue. morality has nothing to do with contract (or copyright) law in a common law country. no one should think that getting cute by "bypassing" an acceptance screen will make a difference to the outcome, let alone be crucial. what matters is whether the user has sufficient notice that using/proceeding/whatever is agreement, and that they had a chance to know what they were agreeing to. theres no special magic in an "agree" box, except insofar as asking the user to click it contributes to notice that the user is making an agreement.

spr93 3y ago

a few concepts you need to start: copyright is a right to exclude. copyright does not arise from your agreement. the copyright attaches to the protected expression. analogies are dangerous, but these concepts are intuitive if you think in terms of real property. right to exclude: you have the right to exclude most people, under most circumstances, from your house. doesn't arise from agreement: you can let joe into your house without an agreement. you can also kick him out whenever you want, unless you and joe made an agreement that limits your right to exclude him (or a legal exception applies). in our analogy, the agreement might be a lease. (btw, the lease will limit the owner's right to exclude, and it will probably give both sides some non-property--i.e., contractual--rights. telling the two kinds of rights apart is the subject of the article.) there are exceptions, just like there are exceptions in copyright. you know the names of some of them, like fair use. similarly, there are rights for people who don't have a formal lease, and there are rights that exist even if a lease purports to reject them. but what you call the "default position" is the same: the property owner has the right to exclude others. exists wherever the property exists: the right to exclude someone from real property attaches to the land and stays with it. similarly, copyright attaches to the protected expression; the copyright owner's right to exclude is already attached to the copy you have. now you can see why you don't get to do whatever you want with a copy if you don't have an agreement: the copyright already governs your copy. it lets the copyright owner exclude you. if you want protection against that exclusion, then you need to agree to a license. that is, of course, a gross oversimplification. for example, you emphasize "copy", but the copyright owner has other rights, such as the right to prepare derivative works, the right to distribute the work, and the right of public display. the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work, and that in itself would been a copyright violation. on the other hand, just having a copy isn't a copyright violation because "having" isn't a protected right. details like that rarely matter though. i only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.

dataflow 3y ago
Thanks for the info. To reply to your points: > I only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics. To be clear, I was never claiming this is legal. I figured well enough that it probably isn't. My question was, what is the legal basis for it. > copyright is a right to exclude Note the comment I replied to wasn't talking about copyright (at least not explicitly). It claimed there is no right to use software without agreeing to its EULA. The entire question here seems to be about whether an EULA is a contract or a (copyright?) license, so that itself isn't clear. But in either case, you presumably have the right to at least copy the work as-is, so I'm assuming no copyright violation is happening at least up to that point. > the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work Your rebuttal hinges on the implementation of the bypass mechanism. I'm trying to get to the heart of the matter, and I don't get the impression it should depend on that (but do correct me if I'm wrong). If you need a concrete implementation to discuss the crux of it, consider this: you can just as well imagine bypassing some program's agreement by modifying the environment around the program, and thus not actually creating a derivative work. (In the simplest case, imagine a naive program that just checks to see if a "is_licensed=true" exists in some config file, and imagine the user setting that manually to bypass the check. The program stays intact.) I think the heart of the question here is: if you know the intention was to make you agree to the license, but you never agreed to do that, and you managed to get the program to get past that point... what exactly did you violate? It certainly doesn't seem like you violated copyright, given you had every right to copy the work. And it doesn't seem wasn't any contract you were bound by - was there? So when/why is that (not) legal?