There is something called "standard practices". In particular, a license to use a copyrighted work is something defined in the copyright law. One of the things you are allowed to do with such a license is to sell it someone else.
There are two types of deviation from this set standards. The first is when you want a license that allows more things than what a standard license allows you to do. This, in turn, can be achieved in two ways.
The first it to contact the copyright owner and sign a contract with them. A contract overrules the copyright law wording, as it is binding both sides. The second method is for the copyright holder to give blanket broader license, available to wide groups. This is how all free software licenses work, as well as some proprietary software (http://sourceforge.net/projects/corefonts/).
This second method does not require a contract. The reason it does not require a contract is exactly as you said - you have no other explanation for why it is legal for you to distribute copies. You are bound or else you have no permission to make copies of the Linux kernel. It therefor follows that such licenses can ONLY be effective when they grant you permissions not granted by the copyright law itself. Otherwise, you'd simply point to copyright law and say "that's where my permission comes from".
Which irritates some proprietary vendors. They want to ban you from doing stuff you are entitled to do under copyright law (second deviation mentioned above). Their way of making that happen is to claim that a contract has been signed. Now they have a problem. They have to lift an onus of proof that a contract has, indeed, been signed. The ways of doing that are the usual way we all know and hate. Click through licenses, seal breaking licenses etc.
The operative word, however, is an action taken by the end user. They must be able to stand up in court and claim that you could not have not known you were entering a contract. They can't say "by breathing you are accepting the terms of this contract". No judge will buy that. In fact, there are cases where even click-wrapped licenses didn't stand up.
Just this layman's view of the law.
ShacharGilad Ben-Yossef wrote:
However, if you do not agree to the EULA, you do not have a license to use or distribute the software. Preiod. Only by agreeing to the EULA and entering into a contract with Microsoft will you get a license for the software.If I take every step to avoid that same operative action required to bind me to their contract, I still have copyright law to go by. This specifically allows me to sell that which I have bought. Hence, it is up to them to prove that I can't, not up to me to prove that I can.
if you claim that you did not enter into a contract with them *(possible), you will have to agree under what ground you are distributing software copyrighted by another legal entity. *You* are required to prove that you have a license to do that.
It's not the contract that binds you (you haven't agreed to it) - it's copyright law - without getting a license from the copyright holder somehow (and the only way to do that is to agree to the EULA)
Actually, that's where your mistake lies, in my very humble opinion. The point the copyright holder gave me his consent was when they accepted my money, and gave me the goods in return. I doubt any judge will buy their claim that they sold me goods without meaning for me to be able to use them. That is the default agreed status. Anything else requires an agreement, which is why the EULA was put there.
Forget the EULA and the seal - do you have a license to do distribute the software?
No, but that's not what I'm doing. I'm not making copies. I'm selling my existing copy. I do have the right to do that under copyright law (well, under established precedences, at least) under the "fair use" category. That's what the "right of first sale" is all about. You would need a contract to take that right away from me (and arguably, a better contract than an EULA).
As you know I am no lawyer and I don't claim this to make sense. I can't tell you why it is different with book etc. I'm simply sharing by understanding on things are. If you want a lawyer, I believe you know where to find one :-)
True, but as long as we are on this pig's lawerism, the difference between a book and software is that books don't have an EULA. As long as I did not sign a contract, they are both governed by the same rules.
True in the sense that trial is about a contract between IBM and AT&T. But one of the argumentsa raised in teh trial that even if that contract forbade certain things from being done by IBM, when SCO distributed IBM GPL licensed software and then renounced the GPL as "illegal", they lost all right to further distrbute ANY GPLed software from that point onwards.
True, but that's exactly the difference between "distributing" (i.e. - making copies and sending them out), and selling (the same amount of copies initially obtained). You can't do the former without copyright holder's consent. You can do the later to your hearts desired (unless you gave up that right).
Cheers, Gilad
Shachar
-- Shachar Shemesh Lingnu Open Source Consulting ltd. http://www.lingnu.com/
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