Re: UCITA
(IANAL, but soon I'll need one if UCITA comes near me.) I believe RMS fears are justified. The UCITA language appears to be cleverly crafted. With respect to the implied warranty. UCITA creates implied warranty out of thin air EVEN IF there is no consideration (i.e. $$ to the provider) excerpt below.) It also sets _specific_ wording requirements in disclaimers. (Is there any thing else like this in law? I thought that the intent of contracts was more important than the words used...) - I am particularly outraged by the language creating the implied warranty in section 403 (and similar in 401.) "...a licensor that is a merchant with respect to computer programs of the kind warrants..." I read this as: if I sell _any_ software, I am a merchant, and must warrant that _all_ the software I license as being merchantable (per UCITA 403), AND noninfringing (per 401), EVEN IF I license some open source software at no cost. (If I don't sell software regularly, if it is my hobby, then there is no obligation.) That is a very unfair and chilling burden. RMS is right, I think. - One saving point for open source software appears to be this: 406 (d) If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has refused to examine the information, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed to the licensee. That "ought" is a very thin thread to hang a defense on though. And maybe in some cases you can add wording to licenses to limit damages (due to breach of implied warrantees) to the purchase cost. Too tired to read UCITA 803, and 803d seems to say that you can't always do limit. - As a software consultant who also distributes open source software at no cost, disclaiming warranty is absolutely essential. 406.b.1.a allows me to disclaim warranty under 403 with the standard language mentioning "merchantibility." The wording of this paragraph seems to indicate it can be done in the standard inclusion of the disclaimer with the source. But it is not clear that is sufficient. (RMS's objection too?) I don't see a way to disclaim the implied non-infringence warranty of 401. That's a bigger problem. If you want to see something really scary for consumers, read UCITA 107d: A person that uses an electronic agent that it has selected for making an authentication, performance, or agreement, including manifestation of assent, is bound by the operations of the electronic agent, even if no individual was aware of or reviewed the agent's operations or the results of the operations. WOW! But, oh, don't worry about that, I bet the lobbyists say. Because UCITA 206a allows you to petition the COURT for "appropriate relief if the operations resulted from fraud, electronic mistake, or the like." I think there is going to be some nice money to be made by trojaning software to do credit card deposits. Before UCITA, it is fraud and maybe conspiracy, and you could end up in jail. After UCITA, as long as the "person selected the electronic agent" (which you trojaned) then you are OK. Overcharge 1,000,000 card holders $2 each, each individual won't petition the court, and you retire with $2MM. Somebody please explain: 1. UCITA could have been a nice clarification of some sticky parts of contract law applied to computers. Contract law works quite nicely most of the time and is a heck of a lot easier to understand than UCITA. So can somebody give an example of a problem that UCITA solves? 2. Is there any benefit for consumers in UCITA? (Beyond avoiding the scary future the lobbyists predict that no one will be able to write and sell software in the future if UCITA isn't passed?) Again, IANAL. Forrest J. Cavalier III Mib Software
UCITA
I'm surprised there hasn't been more UCITA talk here. Awhile back this article appeared from Stallman: http://linuxtoday.com/stories/15948.html He thinks that under UCITA free software licenses will be unable to disclaim liability, because we are not shrinkwrap licenses. Only with a shrinkwrap license can you get away with the disclaimer. Any thoughts on this and other UCITA issues? Justin
Re: Is it possible to sue infringers under the GPL?
On Fri, 10 Mar 2000, John Cowan wrote: > IANAL, but I think you can treat that as a constructive license, since a > non-exclusive copyright license need not be in writing. Of course, adding the > patcher's name to the contributors list is a matter of civility, not law. Of course I didn't mean to be uncivil :-) I was thinking more on terms of having a free software package with some contributed patches within, then deciding to release a version of it under a different license. I wondered if such a scenario would land me in court or not. Of course, the prudent thing would be to acquire rights and/or permission from the contributor. -- David Johnson... _ http://www.meer.net/~arandir/
Re: Is it possible to sue infringers under the GPL?
David Johnson wrote: > If someone sends me a patch with no notice of copyright in the patch, but an > attached email that says "here's a fix for your code", who does it belong to? I > assume that I can use it in my own code as if it were mine, no questions asked. IANAL, but I think you can treat that as a constructive license, since a non-exclusive copyright license need not be in writing. Of course, adding the patcher's name to the contributors list is a matter of civility, not law. -- Schlingt dreifach einen Kreis vom dies! || John Cowan <[EMAIL PROTECTED]> Schliesst euer Aug vor heiliger Schau, || http://www.reutershealth.com Denn er genoss vom Honig-Tau, || http://www.ccil.org/~cowan Und trank die Milch vom Paradies.-- Coleridge (tr. Politzer)
Re: Is it possible to sue infringers under the GPL?
"Rod Dixon, J.D., LL.M." wrote: > Well, to be precise, one of you is confusing the common sense meaning of > "creator" with the meaning of that term under copyright law. Creation of a > patch does not make you a creator under copyright. It seems to me that that depends on the substantial originality of the patch. Some patches are almost as big as the software being patched, and introduce large amounts of new function. A one-line patch clearly is of no significance, since there is no reasonable form/content division, and furthermore it's de minimis. -- Schlingt dreifach einen Kreis vom dies! || John Cowan <[EMAIL PROTECTED]> Schliesst euer Aug vor heiliger Schau, || http://www.reutershealth.com Denn er genoss vom Honig-Tau, || http://www.ccil.org/~cowan Und trank die Milch vom Paradies.-- Coleridge (tr. Politzer)
Re: How To Break The GPL - Copyright versus Contract
"Rod Dixon, J.D., LL.M." wrote: > If so, the FSF position would be that they own the > copyright interest and THEY are assigning YOU a non-excusive copyright > interest to make derivative works under the terms and conditions of the GPL. In the case of works published by the FSF, certainly. In the case of other works published under the GNU GPL, surely not. > These provisions attempt to avoid the complexity I just referred to and to > establish a choice-of-law rule by agreement. More typically by adhesion. BTW, I'd be curious to know your opinion of the clauses that have appeared in some licenses recently, attempting to override state law to the effect that contracts of adhesion are interpreted strictly against the drafting party -- in a contract of adhesion! Strikes me as void because against public policy. -- Schlingt dreifach einen Kreis vom dies! || John Cowan <[EMAIL PROTECTED]> Schliesst euer Aug vor heiliger Schau, || http://www.reutershealth.com Denn er genoss vom Honig-Tau, || http://www.ccil.org/~cowan Und trank die Milch vom Paradies.-- Coleridge (tr. Politzer)
Re: How To Break The GPL - Copyright versus Contract
"Dennis E. Hamilton" wrote: > However, my sense of the GPL is that the Free Software Foundation is relying > only on Copyright for the GPL, and that there is nothing but a conditional > (non-exclusive and royalty free) license of copyright conveyed in the GPL > (apart from the "no warranty" aspects). Exactly. > I guess here it is a matter of asking the FSF whether they see themselves as > having accomplished anything else, since when we employ the GPL we appear to > be assigning copyright to the FSF. Not at all. The GNU GPL is a nonexclusive transfer of copyright (a regrettable term, since "transfer" connotes "you don't have it any more") from you, the author of the software, to everyone. The FSF is not involved. When you make a patch to an FSF-copyrighted program and send it to them for incorporation (which you are not obliged to do) they ask you for an *exclusive* transfer of your copyright to the FSF, but that has nothing to do with the GNU GPL and everything to do with administrative convenience. The Linux kernel, e.g., is copyright Linus Torvalds and others. The FSF has no copyright interest in it. -- Schlingt dreifach einen Kreis vom dies! || John Cowan <[EMAIL PROTECTED]> Schliesst euer Aug vor heiliger Schau, || http://www.reutershealth.com Denn er genoss vom Honig-Tau, || http://www.ccil.org/~cowan Und trank die Milch vom Paradies.-- Coleridge (tr. Politzer)
RE: How To Break The GPL - Copyright versus Contract
Hmm, I am still not being clear. 1. I agree with you completely about EULAs. I think we agree that the purpose of EULAs is to establish that a copy of a work is being licensed, and not sold, and is being provided under different conditions than simple trading in a copyrighted work. Are you suggesting that the GPL is an EULA? That never occurred to me. 2. I was under the impression that use of the GPL involved affixing a copyright notice naming the Free Software Foundation. I must have dreamed that somewhere. It's not accurate. However, if I affixed such a notice (as some people seem to) and included the GPL, I would think I am making assignment to the FSF under the proviso that the GPL be applicable. That's the case I had in mind. Sorry to have introduced such a red herring. 3. Is it necessary to discuss contracts and EULAs when dealing with a strict granting of license to perform certain conditional acts on a copyrighted work? I mean for the current GPL, not some hypothetical different license. This would seem to keep things under copyright law and the extensions of that outside/into the U.S. by various treaty provisions. (Does the preemption of the States with regard to copyright still holds in anything that has happened since the 1976 revision?) -- Dennis -Original Message- From: Rod Dixon, J.D., LL.M. [mailto:[EMAIL PROTECTED]] Sent: Thursday, March 09, 2000 19:32 To: [EMAIL PROTECTED] Cc: Open-Source License Discussion Subject: RE: How To Break The GPL - Copyright versus Contract > -Original Message- > From: Dennis E. Hamilton [mailto:[EMAIL PROTECTED]] > Sent: Thursday, March 09, 2000 6:45 PM > To: [EMAIL PROTECTED] > Cc: Open-Source License Discussion > Subject: RE: How To Break The GPL - Copyright versus Contract > > > My apologies for not being clear. That is all I meant by > speaking of EULAs. > They are for purposes other than what is (thought to be) dealt with solely > by copyright. > The case that I posted, The Pro CD case, is a federal appeals court case that is viewed by almost all lawyers practicing in this area of law as clearly establishing a court's willingness to view EULAs AS ENFORCEABLE CONTRACTS EVEN WHEN THE ARE NO MORE THAN SHRINKWRAP LICENSES. This case energized the movement (UCITA) to declare ALL software licenses as enforceable contracts under certain conditions (including clickwrap licenses). Virginia is the first state to pass UCITA and many more are currently considering the legislation (this is not to say that there are not dissenting states. New Jersey is one and I believe Iowa is another). Nonetheless, once a few states join Virginia, UCITA will become a valuable tool for the Open Source movement as well as e-commerce in general. You might say that to some extent copyright will be displaced and contracts will become the real legal tool to enforce conditions on how one uses your software after it is downloaded. Controversial? You bet! Implausible? Not anymore. > However, my sense of the GPL is that the Free Software Foundation > is relying > only on Copyright for the GPL, and that there is nothing but a conditional > (non-exclusive and royalty free) license of copyright conveyed in the GPL > (apart from the "no warranty" aspects). It is, after all, touted as the > "copyleft" agreement. You are correct. Of course, most software is sold this way today. Or, to be more precise, software "is not sold, it is licensed." This distinction is made to "protect" the interests of the copyright holder. > I guess here it is a matter of asking the FSF whether they see > themselves as > having accomplished anything else, since when we employ the GPL > we appear to > be assigning copyright to the FSF. Hmm... Not sure what you mean here. It sounds like you are pointing out one of the arguments in the debates going on concerning the legal status of the GPL's copyleft provision. If so, the FSF position would be that they own the copyright interest and THEY are assigning YOU a non-excusive copyright interest to make derivative works under the terms and conditions of the GPL. This is a critical distinction because the GPL would have a dubious legal status, if the argument were reversed or put in the terms you raised. (I think there are instances that may fit your version of the facts.) > > How do you see state contract law(s) applying to the GPL? See above. The GPL IS a contract. Calling it a license simply describes the type of contract it is. some people get confused and believe licenses are always required when copyright interests are at stake. This is not true. Copyright and contracts are not necessarily intertwined. The software industry loves licenses (in part, this may be due to the fact that bits are easily copied). The publishing industry, by contrast, seems to prefer to do business on a handshake, no license. The interesting thing is that both industries produce income by selling copyright interests. (Unfortunately, the digital ag
