On Wednesday 13 April 2005 03:09 pm, Raul Miller wrote: > > > On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote: > > > > Failure to have a click-through license means that there is no > > > > acceptance, which is a fundamental part of contract law. No > > > > acceptance, no contract, no exceptions. > > > > On Wednesday 13 April 2005 06:55 am, Raul Miller wrote: > > > False. > > > > > > For example, you can indicate acceptance of the GPL by exercising the > > > rights it grants. > > On Wed, Apr 13, 2005 at 10:07:09AM -0700, Sean Kellogg wrote: > > While I certainly appriciate the simplicity with which you view the > > law, I'm going to have to stand by my earlier comment and restate, > > once again, that the authors of the GPL claim it is NOT a contract, > > but rather a grant/license. > > [1] Examples and counter-examples can be simple. But please don't > pretend that they cover all issues.
Sounds like a reasonable request. > [2] I don't think you can construe this paraphrase of the GPL authors > claims as meaning that a person using that grant is free to ignore the > conditions imposed by the GPL. Not quite sure what you mean hear... but I do know that a grant cannot impose active conditions. If the active conditions are enforceable, then they need to be in a contract. If my grant says "you can do X, but only if you do Y" then it it is a contrct. If, instead, my grant says "you can do X, but not Y" then its less a condition and more that I reserved Y from the list of rights I gave you, so its not a contract. The issue with the GPL is that waving right to warrenties is like saying "you can do X, but only if you do Y", which is a contract. > [3] You might want to take a look at Richard B. Johnson's post (he posted > it a couple hours before you posted your message). Mr. Johnson's construction of the law regarding contracts of adhesion is wrong. I wish it wasn't the case, and I think there are good policy reasons for adopting Mr. Johnson's opinion, but the courts have consistently ruled the click through license are not contracts of adhesion. You'll have to address further concerns to your local legislator. Additionally, I don't think we get anywhere with the statement that "some jurisdictions look at it differently." This is always going to be the case, and if we dwelled on it for too long the whole of open source software would be swallowed by lawyers trying to write exceptions for each and every jurisdiction. All I can do is tell you what I believe the U.S. law is on a subject matter. > > That questions falls to a matter of agency law, not contract law. > > Same goes for your installation of software on behalf of your dad. > > When you clicked that agree button, you did so as his agent and he will > > be liable. > > But I didn't click that agree button. > > He got his system with software pre-loaded. Or, the neighbor installed > it for him. > > If someone entered into a contract on Dad's behalf, and did not > disclose the contract to him, they are probably liable instead of Dad. > For example, if the EULA prevents resale of the software, and Dad > decides to sell the computer at a garage sale, I doubt he would be in > any danger of prosecution. There would be no evidence whatsoever that > Dad had entered into a contract to not sell that part of the system. Agency law says otherwise. If I instruct my neighbor to install software then I am instructing that neighbor to consent on my behalf. If the neighbor installs the software without my permission, and yet I have reason to know that he installed the software, then I may still be liable (this is to cover the employer who knows his employees are violating EULAs and doing nothing about it). The only clear case is when it was without my permission and I had no reason to know it was installed. But once I know, I am under a duty to figure out what happened and do something about it. Preinstalled software, if I had to take a guess, probably comes with a contractual agreement that you are said to have agreed to when you buy the thing. Although I bet you have the right to return all of that software if you don't agree. > In any event, it's not always the case that the existence of click-through > license means that a user has accepted the license. Thats right, if I can manage to install the software without seeing the license, then I can probably get out of it. This is why the technology requiring the click to actually happen is getting better and better. -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown