Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wednesday 13 July 2005 10:32 pm, Glenn Maynard wrote: On Wed, Jul 13, 2005 at 10:07:49PM -0700, Sean Kellogg wrote: I'm talking about copyright infringement. Maybe I'm the only one?! The question is whether its okay to mandate acceptance of the GPL at download. I am suggesting that you have to agree to it in order to avoid copyright infringement. Hence, if you have to agree the GPL to copy it off the server in the first place, a click-wrap license is no more non-free than just simply attacting the license as part of the COPYING file. No, the question is whether it's free to mandate *explicit*, click-through acceptance of the GPL at (download, install, whatever) time. (The question of whether it's acceptable to mandate agreement to a contract at all, and whether the GPL does so, is unrelated.) There's a world of difference between 1: requiring that a person agree to something, but allowing that agreement to be expressed implicitly, through conduct (eg. by doing something which only the license allows), and 2: requiring that a person (and all recipients of the program from that person, and so on) indicate his agreement by displaying the license and refusing to install unless a button is clicked. #2 is what's in question, and requiring #2 is infinitely more invasive and problematic than #1. I don't know how you can keep claiming that #1 == #2; they have nothing in common. I am so confused. #1 allows a licensor to impose all manner of terms without giving actual notice to the licensee, whereas #2 at least gives the licensee a chance. The warranty provisions are a great example. The GPL rejects all implied warranties, but doesn't tell a licensee it does so unless they go to the trouble of reading the COPYING file. How does displaying the license first and requiring folks say yes, I understand more problematic or invasive? Believe me, I understand the visceral reaction to click-wrap licenses. I have had a lot of debates with law professors on the issue of whether click-wrap licenses are a good thing since they postpone term presentation until far after money has changed hands. But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: On Wednesday 13 July 2005 05:10 pm, Rich Walker wrote: Given that Debian is a global distribution, perhaps your question should reference something other than local law? I checked '106(1) rights' on Google, and it appears to be a US legal concept. As far as the other 6.1 billion of us go, what is our position? Umm... you'll excuse me for only being a trained expert on one set of copyright laws. Foolish me for only spending $30,000 to be trained in US law. If others want to contribute non-US law, but all means, but I'm only going to speak to what I have knowledge in. And you'll excuse me for not being a trained expert on any. :-) But if you are fortunate, as I am, to live in a country where the rule of law is not a total fiction, then you can probably get access to the primary literature -- rulings issued by courts with appellate jurisdiction. That concept is by no means unique to common law countries; it goes back at least to Pontius Pilate's day and has modern analogues from Iran to Irkutsk. As Rich posted from .uk, he needn't go so far afield; recent appellate decisions are available at http://www.hmcourts-service.gov.uk/HMCSJudgments/Search.do . Looks to me like appeals in copyright infringement cases are generally heard in the High Court of Justice, Chancery Division. Picking the first such case that comes to hand (Fraser-Woodward v. BBC), I observe precedents drawn also from the Queen's Bench, the Australian Court system, and a couple of other appellate courts, as well as the relevant statutes; I see no obvious equivalent to Nimmer on Copyright (the standard US secondary source), but there probably is one, if you like having Virgil handy when visiting the Inferno. Anyway, my point is that reading the law for yourself is fun and easy, once you have straight the distinction between the primary literature (appellate decisions and the occasional lower court decision that they cite as being particularly persuasive) and all of the rest (statutes included; interpreting them without reference to the judicial record is a mug's game). Learn your local legal lingo, watch out for precedents that have since been overruled by a higher court or replaced by new legislation, and whatever you do hire a real lawyer if you are ever so unfortunate as to wind up in court. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: I don't think that first-sale and digital goods maps very well... I'm really uncertain as to how the courts have fallen on the issue. I don't see how first sale authorizes me to download (and hence make a copy) of source code to which I don't have permission to copy. Basically, because special-casing electronic delivery to put the onus of acquiring copyright license on the recipient instead of the distributor is stupid; and a good judge tries to avoid obviously stupid conclusions unless the legislature or a higher court forces them on her. US circuit courts, surprisingly enough, are sometimes brave enough to do the right thing even when the stupid practice is already common in the industry or a sister court has already suffered a lapse; hence decisions like Specht v. Netscape, Fosson v. Palace Waterland, and Walthal v. Corey Rusk. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: I am so confused. #1 allows a licensor to impose all manner of terms without giving actual notice to the licensee, whereas #2 at least gives the licensee a chance. The warranty provisions are a great example. The GPL rejects all implied warranties, but doesn't tell a licensee it does so unless they go to the trouble of reading the COPYING file. How does displaying the license first and requiring folks say yes, I understand more problematic or invasive? Click-wrap that isn't trivial to circumvent is a sysadmin's nightmare (what kind of crap-ass software can't be updated site-wide without screenscraping GUI macro magic?) and it's not smart to require it where it's not necessary. If you can get people to behave decently with respect to the temptation to steal more than the vendor is offering, you don't need to club them with FUD. The statutory penalties for copying without license on a commercial scale are pretty steep, and the principal benefits of publication under the GPL can be tied quite satisfactorily to that need for license when modifying and/or copying. There's no sane boundary between making warranty disclaimers (practically legal no-ops at the retail level) binding and allowing enforcement of arbitration clauses on people who just intended to purchase a retail good or even pick up a free newspaper (which is surely bad public policy). So if your concerns relate to the body of the GPL rather than things that have to be hung on a right-to-use hook, why futz around with click-wrap? Believe me, I understand the visceral reaction to click-wrap licenses. I have had a lot of debates with law professors on the issue of whether click-wrap licenses are a good thing since they postpone term presentation until far after money has changed hands. But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. It's not allowable under GPL section 6, it's inconvenient for important categories of users, and it's just plain stupid to do package-by-package anyway. Cheers, - Michael
Mandatory click wraps trivially non-free
[Please retitle threads when appropriate... we've left the kde topic some time ago.] On Wed, 13 Jul 2005, Sean Kellogg wrote: But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. It's quite simple; I'm sure you would have come to it if you thought about possible use cases for GPLed software. Imagine a piece of software that mandated acceptance of the GPL that was designed to be used in a non-interactive fashion. Say it was a library (lets call it libc) that was being used by a program (apache) which is then called by a dynamic web software program (/.) now suddenly, the web program which calls this library through apache has to display the click wrap licence to the library which it is using to each and every user. Now lets imagine that this webpage is being displayed through an RSS feed in an entirely separate aggregator. Surely you can see that requiring the clickwrap license to be viewed by the user is a serious restriction both on modification (3) and a field of endeavor (7); especially as there's no clickwrap license over RSS protocol. Don Armstrong -- I don't care how poor and inefficient a little country is; they like to run their own business. I know men that would make my wife a better husband than I am; but, darn it, I'm not going to give her to 'em. -- The Best of Will Rogers http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
PySNMP license
Hi, I've prepared a package of the Python SNMP framework [1], and my sponsor asked me if I had checked it's license's [2] DFSG-freeness with you guys. So this is what I'm doing now. :) The interesting section, which is the only one differing from the BSD-style license [3], is as follows: THIS SOFTWARE IS NOT FAULT TOLERANT AND SHOULD NOT BE USED IN ANY SITUATION ENDANGERING HUMAN LIFE OR PROPERTY. I consider this as a warning to the user, and not a usage limitation from the author. What do you think, and can the package go to main? Please CC me, as I'm not on this list. - Werner [1] http://pysnmp.sourceforge.net/ [2] http://pysnmp.sourceforge.net/license.html [3] /usr/share/common-licenses/BSD on Debian systems -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Mandatory click wraps trivially non-free
On Thursday 14 July 2005 12:56 am, Don Armstrong wrote: [Please retitle threads when appropriate... we've left the kde topic some time ago.] Technically true... but I'm still trying to make the argument that calling the GPL a License Agreement is neither non-free nor a violation of the GPL itself, as was the original bug's contention. The click-wrap argument is just an offshoot of that original discussion. On Wed, 13 Jul 2005, Sean Kellogg wrote: But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. It's quite simple; I'm sure you would have come to it if you thought about possible use cases for GPLed software. Imagine a piece of software that mandated acceptance of the GPL that was designed to be used in a non-interactive fashion. Say it was a library (lets call it libc) that was being used by a program (apache) which is then called by a dynamic web software program (/.) now suddenly, the web program which calls this library through apache has to display the click wrap licence to the library which it is using to each and every user. Now lets imagine that this webpage is being displayed through an RSS feed in an entirely separate aggregator. Surely you can see that requiring the clickwrap license to be viewed by the user is a serious restriction both on modification (3) and a field of endeavor (7); especially as there's no clickwrap license over RSS protocol. This story is compeling and tragic, but ultimately unconvincing. The original downloader (slashdot) would be obliged to click on the 'I accept the GPL terms' because the original author's chose to put it in there. But there is nothing stoping slashdot from ripping out the clickwrap before they put load it onto their system. The question is not whether click-wraps are stupid or inefficient, but whether a particular distributer's decision to require actual manifestation of assent is anti-GPL / anti-DFSG. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sunday 10 July 2005 09:53 pm, Glenn Maynard wrote: On Sun, Jul 10, 2005 at 05:51:17PM -0700, Sean Kellogg wrote: Glenn, don't you think he's talking about technologically impractical. We all know how easy it is to circumvent click wrap licenses. But you HAVE to agree to the GPL to download the software, click wrap or not, so its not really impractical from a freedom sense. Technically impractical *is* non-free. Marco believes, as far as I understand (from past messages), that a license requiring technically mpractical things as conditions for basic freedoms is free. A you must send 250 redundant copies of the source along with binaries, to make sure that the recipient gets at least one intact is technically impractical; a Linux distribution with two discs of source would have to ship five hundred. I hope such a restriction is clearly non-free. Yeah, your example makes sense because it requires you to do more than is required under the GPL (a violation of the GPL itself). But agreeing to the terms of the GPL is not an additional requirement ontop of the GPL. The gobbly gook in Section 5 of the GPL is, I would suggest, mostly unenforceable... part of the you can't say something is X when its actually Y and expext it to be treated as X doctrine. Its just like work for hire stuff, you can't declare it's a work for hire when its not. In response to an earlier suggestion, whether the GPL covers actions beyond modification and distribution... my copy of the GPL says, in section 1, that I have the right to make copies of code as I receive it. Now that is certainly interesting language. If I am given a copy of the software on CD by someone who agrees to the GPL, then it would seem I'm fine to keep the CD and do whatever even if I vigorously reject the GPL. Fair enough... but when I run 'apt-get', am I the one doing the copying or is the distributor doing the copying? I could really see it going either way but certainly if I come upon someone's computer, burn code to a CD on my own, I am engaged in copying. And, like I said before, the only thing that gives you the right to copy is the GPL, which means you have to agree to it. So why does an author's decision to display those terms when you first install or to call it a License Agreement (desperate attempt to return to subject) violate the GPL or the DFSG? -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
** Sean Kellogg :: On Sunday 10 July 2005 09:53 pm, Glenn Maynard wrote: On Sun, Jul 10, 2005 at 05:51:17PM -0700, Sean Kellogg wrote: Glenn, don't you think he's talking about technologically impractical. We all know how easy it is to circumvent click wrap licenses. But you HAVE to agree to the GPL to download the software, click wrap or not, so its not really impractical from a freedom sense. This is so wrong. The person OFFERING the software for download have to agree to the GPL, not the downloader. And anyway, it's not really easy to circumvent 12000 clickwrap licenses, one for each Debian package. Technically impractical *is* non-free. Marco believes, as far as I understand (from past messages), that a license requiring technically mpractical things as conditions for basic freedoms is free. A you must send 250 redundant copies of the source along with binaries, to make sure that the recipient gets at least one intact is technically impractical; a Linux distribution with two discs of source would have to ship five hundred. I hope such a restriction is clearly non-free. Yeah, your example makes sense because it requires you to do more than is required under the GPL (a violation of the GPL itself). But agreeing to the terms of the GPL is not an additional requirement ontop of the GPL. The gobbly gook in Section 5 of the Wrong again, agreeing to the terms of the GPL if all you want is to *use* the GPL'd software is an additional restriction, since the GPL *explicitly* grants such usage permission. GPL is, I would suggest, mostly unenforceable... part of the you can't say something is X when its actually Y and expext it to be treated as X doctrine. Its just like work for hire stuff, you can't declare it's a work for hire when its not. In response to an earlier suggestion, whether the GPL covers actions beyond modification and distribution... my copy of the GPL says, in section 1, that I have the right to make copies of code as I receive it. Now that is certainly interesting language. If I am given a copy of the software on CD by someone who agrees to the GPL, then it would seem I'm fine to keep the CD and do whatever even if I vigorously reject the GPL. Fair enough... but when I run 'apt-get', am I the one doing the copying or is the distributor doing the copying? I could really see it going either way but certainly if I come upon someone's computer, burn code to a CD on my own, I am engaged in copying. And, like I said before, the only thing that gives you the right to copy is the GPL, which means you have to agree to it. This is not ambiguous as you construct. The GPL section 1 says: 1. You may copy and distribute verbatim copies of the Program's source code as you receive it, *** in any medium ***, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. It's talking about source code, and that you can freely copy it verbatim and distribute such copies. So why does an author's decision to display those terms when you first install or to call it a License Agreement (desperate attempt to return to subject) violate the GPL or the DFSG? Because it takes away the rights the GPL already gave to the recipient: the right to use the software, without having to agree to nothing at all. -- HTH, Massa -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 09:16 am, Humberto Massa Guimarães wrote: Because it takes away the rights the GPL already gave to the recipient: the right to use the software, without having to agree to nothing at all. If you come upon the program on someone else's computer, and that someone else has consented to the GPL, then you're right on the money... that person does not have to agree to the GPL to just simply use the software. But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without permission under the law. Period, end of story, except no substitutions. I have already acknowledge the interesting legal argument that you do not need permission to hold a copy if you get it from a distributor who has permission to distribute, but I'm not convinced and I have asked some smarter people than myself to look into it (they happen to be out of the office right now... so any response may take a while). But absent that theory, there is nothing that grants you the right to 'apt-get install GPL PROGRAM' other than the GPL itself. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thu, Jul 14, 2005 at 09:38:25AM -0700, Sean Kellogg wrote: But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without permission under the law. Period, end of story, except no substitutions. Please cite the part of copyright law that says this. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
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Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 09:46 am, Adam McKenna wrote: On Thu, Jul 14, 2005 at 09:38:25AM -0700, Sean Kellogg wrote: But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without permission under the law. Period, end of story, except no substitutions. Please cite the part of copyright law that says this. (s)106(1) - (1) to reproduce the copyrighted work in copies or phonorecords; Yes, I am aware that if you spontaneously HAVE a copy that its not infringement, it is the ACT of copying that is infringing. And no, I'm not interested in those cases. I am interested in cases where people are running apt-get and COPYING the code from the archives to their personal machines. As an aside, there is no such thing as having a copy unless there was, at some time, copying. So the operative question is who is doing the copying and are they authorized to do so. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Adam McKenna [EMAIL PROTECTED] wrote: On Thu, Jul 14, 2005 at 09:38:25AM -0700, Sean Kellogg wrote: But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without permission under the law. Period, end of story, except no substitutions. Please cite the part of copyright law that says this. Sean's a little bit right here (is that like a little bit pregnant?), in that copies made without authorization are in principle subject to seizure and forfeiture no matter who is presently holding them. AIUI (IANAL), that's true of stolen and converted property generally and specifically, under 17 USC 509, of copies whose unauthorized creation and distribution rises to the level of criminal infringement under 506(a). But that doesn't necessarily mean that possession of such a copy is itself a criminal act. Lots of people come back from trips abroad with counterfeit goods (infringing copyrights and/or trademarks) bought at a street fair or something, and while I don't think I would knowingly buy such a thing myself, I also wouldn't call the cops if a friend gave me one as a gift (and wasn't as far as I know, engaging in a commercial-scale fraud scheme, etc.). In fact, I was once sold a counterfeit copy of a Microsoft product, and it's not clear to me whether the person who sold it to me knew that it was counterfeit; my compromise (so far) has been not to narc but not to buy anything there ever again. As far as I know, still having in my possession a gift Ricky Martin (ugh) CD of dubious provenance, or the evidence that I got swindled by an M$ counterfeiter, doesn't put me on the wrong side of the law; but I wouldn't hesitate to fork them over for destruction if an officer of the law showed me evidence that the copier or distributor was convicted under 17 USC 506. I don't see why the same shouldn't apply to electronic goods; though the politics there, and the reported scale of counterfeiting, have made for rather deep waters. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
** Sean Kellogg :: On Thursday 14 July 2005 09:16 am, Humberto Massa Guimarães wrote: Because it takes away the rights the GPL already gave to the recipient: the right to use the software, without having to agree to nothing at all. If you come upon the program on someone else's computer, and that someone else has consented to the GPL, then you're right on the money... that person does not have to agree to the GPL to just simply use the software. ? But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without Lawful possession of a copy is not forbidden, either in Brasil by our Author's Right Act (9610/98) nor by the Computer Programs Act (9609/98), nor in the USofA by 17USC; where lawful is defined as: you received this copy from a licensed distributor, as opposed by you hacked someone's computer and extracted it from it, you shoplifted a CD, or you got it from a warez site. permission under the law. Period, end of story, except no substitutions. I have already acknowledge the interesting legal argument that you do not need permission to hold a copy if you get it from a distributor who has permission to distribute, but I'm This is not an interesting legal argument: it's a legal FACT. If you acquire *any* copyrighted work lawfully from a distributor who has permission to distribute, this is the first sale that the first sale doctrine is about. not convinced and I have asked some smarter people than myself to look into it (they happen to be out of the office right now... so any response may take a while). But absent that theory, there is nothing that grants you the right to 'apt-get install GPL PROGRAM' other than the GPL itself. And the GPL grants this right right away, in its sections #0, paragraph 1 (Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted) and #4 (parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance). You may consult your legal counsel, but I affirm that your legal counsel will tell you the same I did. Moreover, caselaw down here (and, IIRC, in the USofA too) says that the copies necessary to make a computer program run (from CD to HD, including installation, from HD to RAM, from RAM to on-chip-cache, etc) are NOT protected by copyrights. I.e.: you do NOT need to abide or agree to the GPL to possess, install, or run a GPLd program. It's there (wherever you got it) for you to use. -Sean -- HTH, Massa
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
** Michael K. Edwards :: On 7/14/05, Adam McKenna [EMAIL PROTECTED] wrote: On Thu, Jul 14, 2005 at 09:38:25AM -0700, Sean Kellogg wrote: But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without permission under the law. Period, end of story, except no substitutions. Please cite the part of copyright law that says this. Sean's a little bit right here (is that like a little bit pregnant?), in that copies made without authorization are in principle subject to seizure and forfeiture no matter who is presently holding them. AIUI (IANAL), that's true of stolen and converted property generally and specifically, under 17 USC 509, of copies whose unauthorized creation and distribution rises to the level of criminal infringement under 506(a). Michael, I normally agree with you, but you are way off-base this time. He was referring to copies that were LAWFULLY acquired from a LICENSED distributor. But that doesn't necessarily mean that possession of such a copy is itself a criminal act. Lots of people come back from trips abroad with counterfeit goods (infringing copyrights and/or trademarks) bought at a street fair or something, and while I don't think I would knowingly buy such a thing myself, I also wouldn't call the cops if a friend gave me one as a gift (and wasn't as far as I know, engaging in a commercial-scale fraud scheme, etc.). In fact, I was once sold a counterfeit copy of a Microsoft product, and it's not clear to me whether the person who sold it to me knew that it was counterfeit; my compromise (so far) has been not to narc but not to buy anything there ever again. Bona fide third parties are normally exempt. If you (inadvertently) buy stolen merchandise for 10% discount from store price, you can be considered a bona fide third party. If you buy the same merchandise for a 90% discount, then you are not. When working in the DA's office, I encountered this same problem over and over: should the office prosecute someone who bought for $40, from a thief, a tv set whose store price is $50? And if he bought it for $10? But this is a digression, and has nothing to do with Sean's affirmation: He affirmed that one has to agree to the GPL to possess a copy of a GPL'd program. This was to construe the argument that a GPL clickwrap on installation does not constitute an additional restriction over the GPL, which IMHO is false, because (IMHO again) the GPL (sections #0 §1 and #4) grant the right to use the program (and henceforth to copy it during installation, and then from HD to RAM, from RAM to on-chip-cache) unconditionally. -- HTH, Massa
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thu, Jul 14, 2005 at 11:09:45AM -0700, Sean Kellogg wrote: Yes, I am aware that if you spontaneously HAVE a copy that its not infringement, it is the ACT of copying that is infringing. And no, I'm not interested in those cases. I am interested in cases where people are running apt-get and COPYING the code from the archives to their personal machines. They're not copying the code. Debian is. They are *requesting* a copy, which Debian's FTP daemon makes, and then sends to them. They can't be the ones making the copy, since they are not in possession of the 'original'. It's not substantially different than having a friend copy a Debian CD for them, other than the ephemeral copies made in memory during the download, which, to my knowledge, have been ruled not to infringe. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Humberto Massa Guimarães [EMAIL PROTECTED] wrote: [snip stuff where I agree with Humberto] Moreover, caselaw down here (and, IIRC, in the USofA too) says that the copies necessary to make a computer program run (from CD to HD, including installation, from HD to RAM, from RAM to on-chip-cache, etc) are NOT protected by copyrights. That's true under 17 USC 117 if you are the owner of a copy of the program (or, presumably, the agent-in-fact of the owner), which courts have interpreted to mean that you have substantially all of the rights described in 17 USC 109. If you obtained access to the program under contract terms which do not grant you the rights associated with ownership (such as the right to transfer your copy to a third party), then you may not be protected by 17 USC 117 from allegations of copyright infringement when you use your copy outside the terms of that contract. See DSC v. Pulse, cited previously. The GPL, like most shrink-wrap, click-wrap, and browse-wrap licenses, doesn't restrict your rights in a way that blocks the application of 17 USC 117. Some shrink-wrap licenses try to avoid having the user become an owner, precisely because they want to retain the power to fight uses that 117 would permit; but most US courts don't seem to have much patience with attempts to turn every retail bargain into a contract whose terms are dictated at whim by the vendor. Except, again, when a hopelessly co-opted legislature forces it onto them. I.e.: you do NOT need to abide or agree to the GPL to possess, install, or run a GPLd program. It's there (wherever you got it) for you to use. Yep -- even if it's linked against OpenSSL. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Humberto Massa Guimarães [EMAIL PROTECTED] wrote: ** Michael K. Edwards :: Sean's a little bit right here (is that like a little bit pregnant?), in that copies made without authorization are in principle subject to seizure and forfeiture no matter who is presently holding them. AIUI (IANAL), that's true of stolen and converted property generally and specifically, under 17 USC 509, of copies whose unauthorized creation and distribution rises to the level of criminal infringement under 506(a). Michael, I normally agree with you, but you are way off-base this time. He was referring to copies that were LAWFULLY acquired from a LICENSED distributor. But I was referring to copies made without authorization. I thought I'd made it clear in other messages that I think that, absent knowing collusion in a fraudulent scheme, it is not the recipient's problem to obtain that authorization. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 11:56 am, Humberto Massa Guimarães wrote: He affirmed that one has to agree to the GPL to possess a copy of a GPL'd program. WHAT?! No, never. Possession is not the issue, the issue is copying. And I am not convinced that making an FTP connection and downloading the material from a licensed distributor does not constitute copying, thus requiring permission. It is an interesting legal argument... could be true, but it could also NOT be true. I'm really not sure. Can you CITE something? Here's the way I'm thinking about it. Apple has a license agreement with Sony to distribute music. Apple can make as many copies as it wants under the agreement and distribute it to whomever and charge whatever it wants (including give it away for free). An Apple technician puts a copy of TMBG's Man, It's Loud in Here on a server, but fails to place the appropriate password protection on the server. I come along, discover this song is available for one and all, and download a copy. I agree to nothing in the process. Apple later discovers its mistake, removes the song, and threatens to sue me. What claims can it make? The obvious answer is conversion... but is there a copyright violation here? Strikes me that I have made an unauthorized copy, denied someone their ability to profit from their works. I smell statutory damages. Someone a while back mentioned first sale... which is an interesting place to go. Is the idea that every apt-get I do is actually a series of first sale transactions where the consideration is nothing? That would probably work, other than the fact that it leaves Debian in the unique position to revoke all of the first sale agreements because its not binding without some form of consideration. -- But I'd really like to return to the question that got us all started. Is calling the GPL a License Agreement a bug? Apparently my you have to agree to the GPL anyway theory has gotten people all worked up... so, obviously that's not going to convince anyone on this list. So can someone explain to me why its NOT a license agreement? Do you not in fact have to agree to the GPL if you intend to use the rights under the GPL? -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
** Sean Kellogg :: On Thursday 14 July 2005 11:56 am, Humberto Massa Guimarães wrote: He affirmed that one has to agree to the GPL to possess a copy of a GPL'd program. WHAT?! No, never. Possession is not the issue, the issue is copying. And I am not convinced that making an FTP connection and downloading the material from a licensed distributor does not constitute copying, thus requiring permission. It is an interesting legal argument... could be true, but it could also NOT be true. I'm really not sure. Can you CITE something? I withdraw, about the possession, altough you *have* mentioned possesion in: But I'm not talking about USE, I'm talking about the possession of a copy of the code. You are not permitted to have a copy of the code without (your words) But, about the FTP, the *distributor* is making the copy, you are not copying anything, you are getting your copy that the distributor already made. That happens, not only legally speaking, but in reality. The only thing you made was to *request* a copy and to *receive* a copy: what 17USC and 9609-9610/98 and the Berne convention assign as the copyright owner's monopolies is to *copy*, *modify* and *distribute* copies (modified or otherwise). Here's the way I'm thinking about it. Apple has a license agreement with Sony to distribute music. Apple can make as many copies as it wants under the agreement and distribute it to whomever and charge whatever it wants (including give it away for free). An Apple technician puts a copy of TMBG's Man, It's Loud in Here on a server, but fails to place the appropriate password protection on the server. I come along, discover this song is available for one and all, and download a copy. I agree to nothing in the process. Apple later discovers its mistake, removes the song, and threatens to sue me. What claims can it make? ABSOLUTELY NONE, unless *you* are re-distributing said song. You got it legally (I am assuming that in said site there was a link to a song and a click here to download, and NOT a to get this song you have to pay $10 and get your password, etc...) The obvious answer is conversion... but is there a copyright violation here? Strikes me that I have made an unauthorized copy, denied someone their ability to profit from their works. I smell statutory damages. No, no, and no. Because of the very way the Web functions, if I publish something on it, and I don't reserve any rights conspicuously and I don't put any technological measures to prevent someone's access (robots.txt included) then I am, for all purposes, distributing to those someone. /in/ /casu/, Apple was distributing for you, legally, lawfully, and you only requested and got your copy. Someone a while back mentioned first sale... which is an interesting place to go. Is the idea that every apt-get I do is actually a series of first sale transactions where the consideration is nothing? That would probably work, other than the fact that it leaves Debian in the unique position to revoke all of the first sale agreements because its not binding without some form of consideration. -- But I'd really like to return to the question that got us all started. Is calling the GPL a License Agreement a bug? Yes. The GPL must only be agreed to if you want to copy, modify or distribute (modified or otherwise) the GPL'd work. Apparently my you have to agree to the GPL anyway theory has gotten people all worked up... so, obviously that's not going to I'm not worked up, but I *do* disagree firmly with your theory. convince anyone on this list. So can someone explain to me why its NOT a license agreement? Do you not in fact have to agree to the GPL if you intend to use the rights under the GPL? I posted a document once to d-l, in what we call schema format down here in Brasil, explaining what are your rights under the GPL. If you want, I can send it to you, but people in d-l thought it was very difficult to understand. In short: If you have the lawful possession (*) of a GPL'd work, you can: 1. (unconditionally) use it, play it, run it, and even perform it to the world via web or television. 2. (subject to the conditions under section 1, and to the agreement to the terms of the license as a whole) re-distribute its source code verbatim, in whole or in parts, alone or in an anthology, extending to the receiver the license you received (the GPL). 3. (subject to the conditions under sections 1 and 2, and to the agreement to the terms of the license) modify its source code, and re-distribute the modified source code, in whole or in parts, alone or in an anthology; the work generated by your modifications, being a derivative work of the original, must be licensed to those you distribute it under the terms of the GPL. 4. (subject to the conditions under sections 1, 2, 3 and to the agreement to the terms of the license) re-distribute the binary or executable code
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: But I'd really like to return to the question that got us all started. Is calling the GPL a License Agreement a bug? Apparently my you have to agree to the GPL anyway theory has gotten people all worked up... so, obviously that's not going to convince anyone on this list. So can someone explain to me why its NOT a license agreement? Even in Civil Law countries where almost every transaction is considered a contract the GPL itself would not be the agreement. The GPL lacks the form required for an agreement: It does not contain any language that would indicate an agreement such as the parties hereby agree... nor does it contain signature lines or even checkboxes where the parties could indicate their agreeing to the terms. The fact that would make a transaction involving the GPL an agreement is that the parties, as part of exchanging the license, agree on something, be it by written contract, by handshake, or even by implied agreement. The whole transaction then is the agreement, consisting of the agreement act itself and for example as an annex, the GPL. Do you not in fact have to agree to the GPL if you intend to use the rights under the GPL? The language of the GPL clearly contradicts this and that expliciticy (is that a word?) IMHO clearly trumps any semantics argument about how you actually make a copy when receiving a file over FTP.
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 01:00 pm, Patrick Herzig wrote: On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: But I'd really like to return to the question that got us all started. Is calling the GPL a License Agreement a bug? Apparently my you have to agree to the GPL anyway theory has gotten people all worked up... so, obviously that's not going to convince anyone on this list. So can someone explain to me why its NOT a license agreement? Even in Civil Law countries where almost every transaction is considered a contract the GPL itself would not be the agreement. The GPL lacks the form required for an agreement: It does not contain any language that would indicate an agreement such as the parties hereby agree... nor does it contain signature lines or even checkboxes where the parties could indicate their agreeing to the terms. The fact that would make a transaction involving the GPL an agreement is that the parties, as part of exchanging the license, agree on something, be it by written contract, by handshake, or even by implied agreement. The whole transaction then is the agreement, consisting of the agreement act itself and for example as an annex, the GPL. This is not the 19th century... the specific mechanics of a form are not an issue like they once were. An agreement does not need to be written, or shook on, or any of that signed, sealed, and delivered stuff. If an understood oral agreement is a contract, then I'm fairly certain the GPL is considered a contract. That is, so long as it is not a pure license... a point to which I am conceeding for today. But if it is a license, how is it NOT also a license agreement? To exercise the rights under the licenses, does not one have to agree? Do you not in fact have to agree to the GPL if you intend to use the rights under the GPL? The language of the GPL clearly contradicts this and that expliciticy (is that a word?) IMHO clearly trumps any semantics argument about how you actually make a copy when receiving a file over FTP. Really people... I'm getting bored of saying this. Just because something says it is or is not X, does not mean it is or is not X. In copyright law, the clearest example of this is work for hire. You cannot say something is work for hire unless you behave like it is a work for hire. I suggest to you that Section 8 is not enforcable. The main reason for it to be unenforcable is because of the warranty provisions... but it is also not enforcable because the GPl is strangly worded that it would never need to be enforced. Its really hard to violate the GPL, and if I am violating the GPL, I have engaged in conduct that manifests consent under Section 8. So I don't envision a court getting to any of these legal issues. But for the sake of everyone listening, I want to reiterate why this point is important. IF I am wrong, and the GPL is not a biding agreement, then the warrenty provisions are void. If they are void, Debian and all of the other Linux distributers could be potentially liable for mechantability and other exciting damages. Does anyone here think that's a good thing? -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: On Thursday 14 July 2005 11:56 am, Humberto Massa Guimarães wrote: He affirmed that one has to agree to the GPL to possess a copy of a GPL'd program. WHAT?! No, never. Possession is not the issue, the issue is copying. And I am not convinced that making an FTP connection and downloading the material from a licensed distributor does not constitute copying, thus requiring permission. It is an interesting legal argument... could be true, but it could also NOT be true. I'm really not sure. Can you CITE something? Er, Specht v. Netscape? It would be kind of stupid to say that Netscape could have bound Specht to a browse-wrap license by saying, Oh, by the way, we're not issuing you a copy, you're copying it yourself -- and that means you need a copyright license. Peer-to-peer may have IMHO confused the Napster court a little (in dicta), but apt-get is retail delivery, just like an online newspaper. A public web server (without the sort of click-through unique-link stuff that Sun does for its JDK downloads) just can't shove the legal burden of copying onto the client. Incidentally: if there's a theory against deep linking or framing that holds water, it is either that the linker is misappropriating the linkee's selection and arrangement creative expression in creating the derivative site, or that the composed derivative site is a collective work outside the scope of license that the copyright holders on individual contributions authorized. Here's the way I'm thinking about it. Apple has a license agreement with Sony to distribute music. Apple can make as many copies as it wants under the agreement and distribute it to whomever and charge whatever it wants (including give it away for free). An Apple technician puts a copy of TMBG's Man, It's Loud in Here on a server, but fails to place the appropriate password protection on the server. I come along, discover this song is available for one and all, and download a copy. I agree to nothing in the process. Apple later discovers its mistake, removes the song, and threatens to sue me. What claims can it make? Sounds to me like shoplifting the CD that the stocker forgot to stick the anti-theft gadget on. You knew perfectly well that Apple doesn't give away music for free unless it's labeled free single of the week or the equivalent. Sony might also have a cause against Apple for neglecting its fiduciary duty; but there is probably contract language between them that obviates the need to cry tort. Which one of them can sue you? Doesn't matter much; shoplifting is the DA's problem, not usually a matter for a civil suit, and restitution may be ordered by a criminal court to whoever demonstrates himself to be the injured party. IANAL, etc. The obvious answer is conversion... but is there a copyright violation here? Strikes me that I have made an unauthorized copy, denied someone their ability to profit from their works. I smell statutory damages. Best get your nose checked. :-) Allow me to direct you to a more competent paraphrase of the purpose of statutory damages than I could produce: http://www.wipo.int/enforcement/en/faq/judiciary/faq08.html . A judge would be unlikely to award attorney's fees to a plaintiff who pursued a copyright claim in federal court against someone whose behavior could easily have been handled as a misdemeanor shoplifting case; and $750 or so to offset administrative expenses is not going to cover the plaintiff's costs. Which isn't to say that the RIAA mightn't do it for the fear factor, but a district court opinion saying I'm awarding you the statutory minimum but I think you're jerks won't help them much. (Peer-to-peer is of course different because there's no shop to lift from. But stringing some poor sod up for minimal home bootlegging is pointless when there are music sharing clubs with membership fees to go after.) Someone a while back mentioned first sale... which is an interesting place to go. Is the idea that every apt-get I do is actually a series of first sale transactions where the consideration is nothing? That would probably work, other than the fact that it leaves Debian in the unique position to revoke all of the first sale agreements because its not binding without some form of consideration. AFAIK the sale in doctrine of first sale doesn't require consideration, just transfer of ownership of copies. 17 USC 109 appears to bear me out. The transfer of the copy is not revocable. The grant of rights in a non-license like the MIT X11 notice may be (modulo reliance to one's detriment / equitable estoppel); but that's because it's an offer of continuing performance with no return consideration. You can't continue to rely on a revoked copyright license to make new copies or new derivative works (there's fair use, but that has nothing to do with license); but you can retain, and keep using, and sell or transfer, the
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On Thu, Jul 14, 2005 at 12:15:52PM -0700, Sean Kellogg wrote: am not convinced that making an FTP connection and downloading the material from a licensed distributor does not constitute copying, thus requiring permission. How can this hypothetical downloader make a copy of something he doesn't possess in the first place? --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Mandatory click wraps trivially non-free
On Thu, Jul 14, 2005 at 08:53:25AM -0700, Sean Kellogg wrote: On Thursday 14 July 2005 12:56 am, Don Armstrong wrote: [Please retitle threads when appropriate... we've left the kde topic some time ago.] Technically true... but I'm still trying to make the argument that calling the GPL a License Agreement is neither non-free nor a violation of the GPL itself, as was the original bug's contention. The click-wrap argument is just an offshoot of that original discussion. I don't think anyone is disagreeing with that, except possibly Arnt Karlsen, the original reporter who isn't participating in this thread. I think everyone agrees that #317359 is not a DFSG-freeness problem or a GPL violation, and is at most wishlist. I don't think there's any argument to return to. (It doesn't matter what you call it; you can call the GPL a Ham Sandwich, and I can't see how that would be relevant to freeness or be a GPL violation. It's the text and requirements of the license that matters, not menu titles.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: This is not the 19th century... the specific mechanics of a form are not an issue like they once were. An agreement does not need to be written, or shook on, or any of that signed, sealed, and delivered stuff. Please note that I included implied agreements as a possible form of the mechanics of an agreement. This, however, does not make a copy of the GPL text an agreement by itself. Only in combination with at least an implied agreement the whole thing becomes an agreement. Now I would concede and call the GPL an agreement if there is no conceiveable case where agreement and license text can be separated but as it is, the text of the GPL itself separates the vast majority of dealings with GPL software (use) as out of scope. Do you not in fact have to agree to the GPL if you intend to use the rights under the GPL? The language of the GPL clearly contradicts this and that expliciticy (is that a word?) IMHO clearly trumps any semantics argument about how you actually make a copy when receiving a file over FTP. Really people... I'm getting bored of saying this. Just because something says it is or is not X, does not mean it is or is not X. Something explicitly spelled out in writing is a strong indication and you need to come up with something convincing to counter that. Your argument that the written exclusion of use from the scope of the GPL is invalid hangs on your at least controversial interpretation of the mechanics of an FTP transaction. I suggest to you that Section 8 is not enforcable. The main reason for it to be unenforcable is because of the warranty provisions... You feel that the warranty provisions don't cover enough protection from liability so you want to expand the scope of the GPL against its explicitly spelled out wording. That doesn't sound like a valid legal interpretation strategy. The more straightforward interpretation would be that the warranty provisions just don't apply to things that are out of the scope. But for the sake of everyone listening, I want to reiterate why this point is important. IF I am wrong, and the GPL is not a biding agreement, then the warrenty provisions are void. If they are void, Debian and all of the other Linux distributers could be potentially liable for mechantability and other exciting damages. Does anyone here think that's a good thing? I actually don't consider the warranty provisions binding for cases of use. When I use a piece of software that is being distributed to me it is up to the distributor to provide/void warranty as he is my partner in the transaction. Are the warranty provisions useless then? No. If I go after the person distributing to me for damages the warranty provisions protect the upstream author against the distributor passing up the buck. For the jurisdiction that I am in this is not really a Problem for Debian (=distributor) since good faith no-consideration transactions are by law limited in warranty anyway (incidentially much to the extent of the warranty provisions in the GPL). I guess other jurisdictions have similar protections against seeking damages from someone giving you a gift in good faith.
Re: Mandatory click wraps trivially non-free
On Thu, 14 Jul 2005, Sean Kellogg wrote: On Thursday 14 July 2005 12:56 am, Don Armstrong wrote: On Wed, 13 Jul 2005, Sean Kellogg wrote: But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. Surely you can see that requiring the clickwrap license to be viewed by the user is a serious restriction both on modification (3) and a field of endeavor (7); especially as there's no clickwrap license over RSS protocol. The original downloader (slashdot) would be obliged to click on the 'I accept the GPL terms' because the original author's chose to put it in there. But there is nothing stoping slashdot from ripping out the clickwrap before they put load it onto their system. We're discussing two different things then. If the click wrap can be removed from the program, then I submit that it is not mandatory, nor a requirement of actual manifestation of assent. It's merely a dialog box that the author happened to have placed into their program because they felt it would be nice to have people click on a button. Don Armstrong -- She was alot like starbucks. IE, generic and expensive. -- hugh macleod http://www.gapingvoid.com/batch3.htm http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#318204: ITP: php-simpletest -- Unit testing and web testing framework for PHP
* License : The Open Group Test Suite License I'm not optimistic about this licence being DFSG-free. Hi, I was wondering if Debian-legal could offer any insight on this matter. I searched the mailing list archives, and found no explicit discussion of this license. The only potentially problematic clauses I see are those that ensure that the original test modes be preserved. To my untrained eye this seems to be a variation of The license may require derived works to carry a different name or version number from the original software, with the exception that the original test cases must also be provided, along with the derived works. Could you please provide me with some official Debian advise on this matter? thanks, Charles -- Tested In peace Proven in war Better now Than ever before Burma-Shave http://burma-shave.org/jingles/1945/tested signature.asc Description: Digital signature
Re: Mandatory click wraps trivially non-free
On Thursday 14 July 2005 02:28 pm, Don Armstrong wrote: On Thu, 14 Jul 2005, Sean Kellogg wrote: On Thursday 14 July 2005 12:56 am, Don Armstrong wrote: On Wed, 13 Jul 2005, Sean Kellogg wrote: But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. Surely you can see that requiring the clickwrap license to be viewed by the user is a serious restriction both on modification (3) and a field of endeavor (7); especially as there's no clickwrap license over RSS protocol. The original downloader (slashdot) would be obliged to click on the 'I accept the GPL terms' because the original author's chose to put it in there. But there is nothing stoping slashdot from ripping out the clickwrap before they put load it onto their system. We're discussing two different things then. If the click wrap can be removed from the program, then I submit that it is not mandatory, nor a requirement of actual manifestation of assent. It's merely a dialog box that the author happened to have placed into their program because they felt it would be nice to have people click on a button. Ah, agreement! Fantastic. There are some semantic differences between us, but nothing worth quibbling over. Obviously the GPL prohibits a pop-up which cannot be removed by a later distributor. My only contention was that as a distributor, if I wanted extra assurance that those I was distributing to saw the GPL, that I could have it pop up in my distributions. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, 13 Jul 2005 20:49:42 -0400 Glenn Maynard wrote: I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? #1 is why is the Napster downloader guilty; I don't have an answer #to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). The sender might, after all, have had a license to redistribute. Mmmmh, let me analyse things in a different scenario. Suppose that A is the *copyright holder* and distributes his/her work through a web server. Suppose that the work is proprietary with no license at all (All Rights Reserved). A practical example could be some proprietary mp3 music files that are downloadable from the record company's website (say for promotional purposes). B finds the work while surfing the web and downloads it. The work is undistributable: B cannot redistribute to anyone else. Nor B can prepare derivative works or distribute them to anyone else. But B does *not* perform any of these operations. B has simply downloaded and (privately) enjoyed the work. In the above example, J. Random Headbanger downloads and listens to the mp3 music files. But he does nothing else with them. Is there any copyright infringement in this scenario? I would say no, there isn't any. If this is correct: why do I need a license to download a GPL'd work, if J. Random Headbanger does not need any to download proprietary music? -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpZeYx2VQt5b.pgp Description: PGP signature
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
On 7/14/05, Patrick Herzig [EMAIL PROTECTED] wrote: On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: This is not the 19th century... the specific mechanics of a form are not an issue like they once were. An agreement does not need to be written, or shook on, or any of that signed, sealed, and delivered stuff. Please note that I included implied agreements as a possible form of the mechanics of an agreement. This, however, does not make a copy of the GPL text an agreement by itself. Only in combination with at least an implied agreement the whole thing becomes an agreement. Now I would concede and call the GPL an agreement if there is no conceiveable case where agreement and license text can be separated but as it is, the text of the GPL itself separates the vast majority of dealings with GPL software (use) as out of scope. Technically (AIUI, IANAL), the agreement is the entire understanding between the parties, in whatever combination of writing and other forms, while contract is the agreement as modified by statutory overrides. It becomes an agreement following offer and acceptance, and it's that acceptance which is here implied by conduct. The conduct that implies acceptance is the exercise of a right that the offeree would not possess unless it had accepted the offer -- in this case, not a right to use (which is generally intrinsic to lawful possession and in any case explicitly disclaimed as part of the matter of the agreement in GPL v2 -- but not in v1), but a right to copy, modify and/or distribute that would otherwise be reserved to the copyright holder. [snip] You feel that the warranty provisions don't cover enough protection from liability so you want to expand the scope of the GPL against its explicitly spelled out wording. That doesn't sound like a valid legal interpretation strategy. The more straightforward interpretation would be that the warranty provisions just don't apply to things that are out of the scope. No, they just don't apply to people whose acceptance of the GPL cannot be demonstrated. If it can be demonstrated that someone passed along an additional copy of a given GPL work to someone else, or otherwise did things to it that would be copyright infringement if it weren't for acceptance of the GPL, then I would expect the GPL terms to apply to them also in their character as a user of that work -- and unless it really is true that they didn't intend to accept the GPL and they would rather take the hit for a not-very-willful copyright infringement than lose some other cause of action. But for the sake of everyone listening, I want to reiterate why this point is important. IF I am wrong, and the GPL is not a biding agreement, then the warrenty provisions are void. If they are void, Debian and all of the other Linux distributers could be potentially liable for mechantability and other exciting damages. Does anyone here think that's a good thing? I actually don't consider the warranty provisions binding for cases of use. When I use a piece of software that is being distributed to me it is up to the distributor to provide/void warranty as he is my partner in the transaction. Are the warranty provisions useless then? No. If I go after the person distributing to me for damages the warranty provisions protect the upstream author against the distributor passing up the buck. Agreed -- modulo non-disclaimable causes of action, of course, such as fraud and intentional harm, and in the absence of a business relationship between upstream and distributor that implies a duty to indemnify. Some jurisdictions reject insufficiently conspicuous liability and warranty waivers on product labeling, especially in the absence of real evidence that the customer noticed and agreed to them. There's also a limit to how much liability you can escape by operating through an intermediate legal shell from which it's hard to obtain redress. Uploaders of abandonware clones take note. For the jurisdiction that I am in this is not really a Problem for Debian (=distributor) since good faith no-consideration transactions are by law limited in warranty anyway (incidentially much to the extent of the warranty provisions in the GPL). I guess other jurisdictions have similar protections against seeking damages from someone giving you a gift in good faith. Such protections are by no means complete; if I hand a LiveCD to someone for free and it fries their G5 laptop because it doesn't tickle the power management circuitry right, somebody (me, the person who mastered the LiveCD, the organization that oversaw the packaging of that compiled kernel, who knows) may wind up paying for it despite the kernel GPL. Somewhere along the way it went from being published information with a do not try this at home unless you like Mac toast disclaimer to a product, free beer or not. After researching implied warranties in the US a little bit, I know little more about
Re: Mandatory click wraps trivially non-free
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: We're discussing two different things then. If the click wrap can be removed from the program, then I submit that it is not mandatory, nor a requirement of actual manifestation of assent. It's merely a dialog box that the author happened to have placed into their program because they felt it would be nice to have people click on a button. Ah, agreement! Fantastic. There are some semantic differences between us, but nothing worth quibbling over. Obviously the GPL prohibits a pop-up which cannot be removed by a later distributor. My only contention was that as a distributor, if I wanted extra assurance that those I was distributing to saw the GPL, that I could have it pop up in my distributions. Sure enough, they _saw_ it. But that doesn't mean they _accepted_ it even if the button says I accept -- because its very text says that they don't have to accept it to use the software. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 03:21 pm, Francesco Poli wrote: On Wed, 13 Jul 2005 20:49:42 -0400 Glenn Maynard wrote: I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? #1 is why is the Napster downloader guilty; I don't have an answer #to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). The sender might, after all, have had a license to redistribute. Mmmmh, let me analyse things in a different scenario. Suppose that A is the *copyright holder* and distributes his/her work through a web server. Suppose that the work is proprietary with no license at all (All Rights Reserved). A practical example could be some proprietary mp3 music files that are downloadable from the record company's website (say for promotional purposes). B finds the work while surfing the web and downloads it. The work is undistributable: B cannot redistribute to anyone else. Nor B can prepare derivative works or distribute them to anyone else. But B does *not* perform any of these operations. B has simply downloaded and (privately) enjoyed the work. In the above example, J. Random Headbanger downloads and listens to the mp3 music files. But he does nothing else with them. Is there any copyright infringement in this scenario? I would say no, there isn't any. If this is correct: why do I need a license to download a GPL'd work, if J. Random Headbanger does not need any to download proprietary music? Possibly... I really don't know. I think the question is worth exploring. I don't think that Specht v. Netscape is helpful here because it was a contract relating to terms outside of copyright and had a whole bunch of interesting things wrapped into it. If someone has a clean case out there that says this sort of behavior isn't copying and allowable, please share. -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: Possibly... I really don't know. I think the question is worth exploring. I don't think that Specht v. Netscape is helpful here because it was a contract relating to terms outside of copyright and had a whole bunch of interesting things wrapped into it. If someone has a clean case out there that says this sort of behavior isn't copying and allowable, please share. Dude, that whole copyright-based license thing is a delusion. The GPL is an offer of contract, which is the only way that a copyright license can be conveyed. Even an license implied through conduct, as in Fosson v. Palace Waterland and Jacob Maxwell v. Veeck, is an implied contract-in-fact. The whole of contract law is applicable to it. Specht is about what it takes to demonstrate acceptance in the absence of traditional meeting of the minds, and you're unlikely to find analysis more precisely on point than its Secton III: Whether the User Plaintiffs Had Reasonable Notice of and Manifested Assent to the SmartDownload License Agreement. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
After researching implied warranties in the US a little bit, I know little more about that particular question, other than that they vary wildly from state to state in the absence of federal regulation of a particular industry -- but I do know that I never want to own an RV, I don't trust the FDA to regulate cosmetic surgery or the EPA to regulate pesticides, and I'm never going to eat another non-QAI-certified-organic banana. Here's at least one encouraging reference (found via merchantability rather than implied warranty): Kearney v. IBM ( http://caselaw.lp.findlaw.com/data2/circs/9th/9435890.html ). If you've ever seen Big Blue in action, I think you will agree that a vendor of products (rather than services) would have to work pretty hard to establish a special relationship for liability purposes in Oregon if IBM's sales tactics failed to do so. I say in Oregon, rather than in the Ninth Circuit as a whole, because of the use of an Oregon Supreme Court precedent: quote Under Oregon common law, as set out by the Oregon Supreme Court in the seminal case of Onita Pacific Corp. v. Trustees of Bronson, tort claims for purely economic loss must be predicated on some duty of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm. 843 P.2d 890, 896 (Or. 1992) (In Banc). The Oregon Supreme Court held that while one `ordinarily is not liable for negligently causing a stranger's purely economic loss without injuring his person or property,' id. (quoting Hale v. Groce, 304 Or. 281, 283, 744 P.2d 1289 (1987)), under some circumstances, one may be liable for economic loss sustained by others who rely on one's representations negligently made. Id. The court defined economic losses as financial losses such as indebtedness incurred and return of monies paid, as distinguished from damages for injury to person or property. Id. at n.6.2 /quote The opinion goes on to articulate what sort of special relationships can create such a duty to avoid negligent misrepresentation. Looks like anyone seriously interested in the subject should consult Alfred Hill's Damages for Innocent Misrepresentation, a 1973 article in the Columbia Law review. In short, a vendor-customer relationship appears to be a hell of a lot safer than a consultant-client relationship if you want to disclaim implied warranties of merchantability, fitness for a particular purpose, and all that. IANAL, TINLA, I just walked by FindLaw without my tinfoil hat. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
In Texas, on the other hand, the scope for a court to find an implied warranty of merchantability is far broader. Here's a quote from Ameristar Jet Charter v. Signal Composites ( http://caselaw.lp.findlaw.com/data2/circs/5th/0011270cv0.html ): quote Under Texas law the warranty of merchantability is implied in every transaction for the sale of goods if the seller is a merchant of goods of that type. See Hininger v. Case Corp., 23 F.3d 124, 128 (5th Cir. 1994) (citing Tex. Bus. Com. Code § 2.314(a)). Section 2.104 of the Texas Business and Commercial Code provides that a merchant is: a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. Tex. Bus. Com. Code § 2.104. In Nelson v. Union Equity Coop. Exchange, 548 S.W.2d 352, 357 (Tex. 1977), the Texas Supreme Court expansively construed the definition of merchant under the code as intended to apply to all but the most casual or inexperienced sellers. /quote On the other hand, later in the decision: quote Under Texas law, a buyer's damages on a breach of warranty claim are the difference between the value of the goods as accepted and the value of the goods as warranted, unless special circumstances show proximate damages of a different amount. See Tex. Bus. Com. Code § 2.714(b). /quote Even if the value of the goods as warranted is negligible, I can imagine the existence of an implied warranty of merchantability providing a hook on which to hang special, incidental, or consequential damages in the event of negligence on the part of a GPL author or contributor. Negligence within a contractual relationship is a much lower standard than the common law duty to exercise reasonable care to prevent foreseeable harm (quoted from Onita Pacific in the last message). So a GPL author or distributor who can't hold an end user to acceptance of the warranty disclaimer might find himself on the receiving end of a non-trivial breach of warranty lawsuit in Texas. Comments from the legally skilled? Cheers, - Michael (IANAL, TINLA)
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
One more quickie, this time Footnote 3 of Cipollone v. Yale Davco ( http://caselaw.lp.findlaw.com/data2/circs/1st/991494.html ): quote Our conclusion that there is no breach of warranty of merchantability justifies summary judgment on Cipollone's negligence claims against Yale as well. See Hayes v. Ariens Co. , 462 N.E.2d 273, 275 (Mass. 1984) (A defendant in a products liability case in this Commonwealth may be found to have breached its warranty of merchantability without having been negligent, but the reverse is not true. A defendant cannot be found to have been negligent without having breached the warranty of merchantability.). /quote So in Massachusetts, that implied warranty of merchantability is a critical factor in establishing a cause of action for negligence when claiming consequential damages in a product liability case. But this decision also quotes Restatement (Third) of Torts: Products Liability § 5 (1998). If the component is not itself defective, it would be unjust and inefficient to impose liability solely on the ground that the manufacturer of the integrated product utilizes the component in a manner that renders the integrated product defective. Happily, this puts a typical upstream developer in a somewhat protected position; if Crimson Chapeau sells a Linux distro on a PC, plus Hercules, to BigCo as a mainframe replacement, and BigCo's transaction processing system goes down during the retail peak because some driver is not designed to handle that kind of load, presumably that's basically CC's problem, not Linus's or the driver author's. And that holds anywhere that the Restatement isn't overridden by local law, which isn't that common. Right? Cheers, - Michael (IANAL, TINLA)
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls th e GPL License Agreement, ie; a contract.
What the heck, let's pull in another state in another circuit, Iowa this time: Brunsman v. DeKalb Swine ( http://caselaw.lp.findlaw.com/data2/circs/8th/971135p.html ). This opinion points to the sections of Iowa Code relevant to warranty disclaimers, and states: Under Iowa law, a court considering a claim of unconscionability should consider the factors of assent, unfair surprise, notice, disparity of bargaining power, and substantive unfairness. This plaintiff lost because the warranty disclaimer met the applicable statutory standard of wording and conspicuousness ( http://www.legis.state.ia.us/IACODE/1999/554/2316.html , if you're curious) -- the existence of such a standard implies that the state's law does not view such a disclaimer as substantively unfair -- and it was a properly negotiated agreement in the other four respects named. It would not surprise me to find that many jurisdictions have a similar technical standard for disclaimers of implied warranties and that the language of the GPL meets them. But clearly there's more to it than good drafting and nominal assent, even if that assent were demanded before use and not just before exercise of copyright license. In the event that Linux, glibc, and GCC destroy the market for commercial UNIXen and their compilers (as they bid fair to do), and crowd the BSDs at least out of the server sector, that disparity of bargaining power factor may yet undermine the GPL's warranty disclaimer and expose distros (if not upstreams) to liabilities they hadn't planned for. Cheers, - Michael (IANAL, TINLA)
