Companies Don't Even Read Their Own EULAs Carefully

from the so-why-should-we? dept

Fri, Mar 28th 2008 7:23am — Timothy Lee

A couple of funny stories that came out this week illustrate the extent of the problem with the End-User Licensing Agreements that we're constantly being asked to "agree" to every time we use a new piece of software. First, an Italian site noticed that the EULA for Apple's newly-released version of Safari for Windows requires that "The software allows you to install and use one copy of the Apple Software on a single Apple-labeled computer at a time." Obviously, most Windows users do not have an "Apple-labeled computer," which would suggest that they'd be violating Apple's license (and therefore infringing copyright) if they installed Safari at all. That would be ridiculous, and sure enough, a quick call to Apple confirmed that this was an oversight on Apple's part, and that you can, in fact, install Safari on a non-Apple Windows machine. The same day the Apple story was making the rounds, Chris Soghoian noticed that if read literally, Google's terms of service would prohibit anyone under 18 from using any of Google's websites. It reads "You may not use the Services... if you are not of legal age to form a binding contract with Google." As Chris points out, in most states you have to be 18 to form a binding contract, suggesting that those under 18 are prohibited from using the service. He notes that a lot of other companies, including Facebook, MySpace, and Microsoft, have friendlier terms, either limiting the services to those 13 and over or saying nothing about age at all.

This is another good reason that we should be skeptical about the idea that these kinds of perfunctory EULAs and TOSs should be treated exactly the same way as ordinary contracts signed by two human beings. When it's in their interests, companies try to argue that these kinds of contracts should be strictly enforced, for example claiming that it trumps the first sale doctrine. Yet it's been clear for a long time that users almost never read these agreements. Now it seems that even the lawyers nominally in charge of writing them don't review them very carefully. If neither party to these "contracts" takes them seriously, might that suggest that the courts should be skeptical of considering them to be contracts at all?

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Filed Under: eulas, reading
Companies: apple, google

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Crosbie Fitch (profile), 28 Mar 2008 @ 8:24am

A EULA is a pro forma contract
A EULA is not a contract (an agreement) unless the 'end user' demonstrates that they have agreed to it - VOLUNTARILY and WILLINGLY.

Removing shrink-wrap in order to use the product one has purchased therein does not constitute such agreement - no matter that the EULA may say it does.

What would constitute agreement would be the end user signing a document affixed to the package.

I'm sure many unscrupulous merchants would love to be able to obtain a punter's 'agreement' under duress, as an unwitting incident, or as an unavoidable consequence of enjoying one's purchase, but this doesn't make it an agreement.

Unfortunately, many lawyers and judges are only too happy to take the merchant's point of view (if they have enough money).
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Danny, 28 Mar 2008 @ 8:46am

Has anyone 'considered' this?
In the case of Google and all of the other web2.0 firms that offer me free use of software, how can an EULA be a binding contract?

What consideration am I giving as part of the contractual arrangement?
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matt, 28 Mar 2008 @ 8:47am

EULAs / TOSAs
I do read (most of) them, unfortunately. Some have some really strong wording, others are more fair/benign. Watch out for the arbitration provisions. Refuse to do business with companies who use "bullying" legalese in their agreements and make it known to them exactly why they lost your business.

I also hate the ones (ahem, ahem, BANKS, ahem) that set up an "inbox" for you on your online account page, then occasionally send you an email to that inbox noting that your terms just changed. They are so long, and they change them so much, that no normal person could keep up with what they're agreeing to.
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Anonymous, 28 Mar 2008 @ 9:03am

Apple
I always scan the EULAs; I definitely don't read all of them word for word, but scanning for key words helps. The first day Safari became available on Windows, I noticed the Apple-Labeled part of the agreement. I accepted anyway, I have an Apple sticker on my PC even though it only runs Vista and Gentoo =) Anyhow, I'm glad they caught and changed the mistake. My opinion of Safari: it renders pages much quicker than IE or Firefox (at least the pages I go to); I wish privacy feature could be turned on automatically every time the browser is opened.
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Anonymous Coward, 28 Mar 2008 @ 9:22am

Re: Has anyone 'considered' this?
You're giving them your agreement in exchange for the use of the software.

Google is getting the benefit of your agreement (including your forfeiture of rights and warranties, your obligations and representations related to the software, and rights granted to Google, such as termination rights) and your getting the benefit of the software (and there's usually little or no benefit of the agreement to you).

Contractual consideration exists.

It's too bad Apple and Google don't have QA on their EULAs.... When you're working on such templated documents, it's always important to have clean reads....
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And apathy for all, 28 Mar 2008 @ 10:06am

EULA hocus-pocus
Now, this was on another site I look at and its editor stated they'd heard about this, saw it was an obvious oversight and didn't say anything about the story till it blew up on the web. This is the exact defense a company would use if they had to defend an EULA in court but if a privet citizen tried to point out an obvious flaw... Nope a contract would be a contract.
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Jack at F&B, 28 Mar 2008 @ 10:22am

Safari EULA
"That would be ridiculous, and sure enough, a quick call to Apple confirmed that this was an oversight on Apple's part, and that you can, in fact, install Safari on a non-Apple Windows machine."

A phone call was necessary?

Why not sue them for restricting use to "Apple-labelled" machines only?
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PRMan, 28 Mar 2008 @ 10:44am

You are forgetting the key part...
Apple FORCED AN INSTALL of Safari on everyone on a PC who upgraded iTunes, even though the resulting EULA forbade installation on that machine!
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Anonymous Coward, 28 Mar 2008 @ 10:44am

Re: Safari EULA
Because this isn't a life/death necessity with no alternative.

If you're on Windows, you have IE. If you are on ANYTHING you have Opera/FireFox. No reason to use Safari unless you want to.

It is Apple's product, and if they want to be R-Tards about it that's their choice.

The fact that people still DO use it with ridiculous terms like that just goes to show how apathetic people are these days.

Lack of responsibility, personal or otherwise, is exactly what's been going wrong for this country for a while now.

The fact that some of these issues span the globe just goes to show non-Americans aren't any better about somethings, as much as many would like to disagree.
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Steve R. (profile), 28 Mar 2008 @ 11:01am

The Rule of Law
For a society to function we need to have mutual respect. One way this is expressed, is through our legal system. If the legal system becomes one sided, then civil disobedience surfaces. This is what is happening to EULAs, Patents, and Copyright. The legal system is no longer a level playing field treating each party fairly.

In a simplistic sense - why should anyone respect another's so-called rights if they blatantly intend to deprive you of your rights.
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pegr, 28 Mar 2008 @ 11:27am

You do not need to be 18 to enter into a contract
It may be rendered unenforceable because you are under 18, but that's a different issue, and that's up to a judge.
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Anonymous Coward, 28 Mar 2008 @ 11:47am

EULAs are a joke, period. They are abused, misused, ignored, etc. Nobody cares about them, including the companies that write them, except for when they can be used as a technicality in litigation for piracy or abuse of the software they supposedly protect. It's becoming clear that major corporations aren't even putting much effort into them these days. I think the whole concept of the EULA needs to be re-evaluated to see if it really is relevant to today's world. Software licensing needs to be standardized and simplified.
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Rekrul, 28 Mar 2008 @ 12:30pm

[You may only read the following message if you are completely naked and sitting in a pool of melted butter. Reading the following message constitutes your acceptance of these terms]

I think EULAs should be done away with.
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Fushta, 28 Mar 2008 @ 3:44pm

EULA, hah!
The best part of the EULA is the part where they say, "We have the right to change this EULA at any time without notifying you."
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Jesse, 28 Mar 2008 @ 4:37pm

Tangible property or imaginary property?
I always find it interesting how some want the best of both worlds when it comes to Imaginary Property. When it comes to copyright infringement, they claim it's the same as stealing tangible property and that ideas should be treated as such. But when it comes to a legitimate use such as is reselling, then all of a sudden, an idea is something different, something to be "licensed" and not sold.
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Bob (profile), 28 Mar 2008 @ 10:18pm

Hillary Clinton EULA
Check out Hillary Clinton's campaign site EULA. You agree to all this (accordding to them) even before you read the first page! I'm not sure what bureaucrats wrote that drivel, but I sure hope they don't make it into government.

You agree to not use the Service (and you agree not to allow others to use the Service) to:
1. Upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, or libelous;
2. upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that is hateful or discriminatory against any individual or group on the basis of race, religion, gender, age, sexual orientation, ethnicity, or disability, or promotes physical harm or injury against any individual or group;
3. upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that is harmful to minors in any way;
4. impersonate any person or entity, or falsely states or otherwise misrepresents your identity or affiliation with another person or entity;
5. stalk or harass another person or entity;
6. employ misleading email addresses, forged headers, or other manipulated identifiers;
7. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships
8. upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
9. upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that is invasive to another's privacy or includes personal or identifying information about another person, without that person's explicit consent;
10. upload, post, email, transmit or otherwise make available any Content or otherwise use the Service in a manner that violates, intentionally or unintentionally, the rules of the Federal Election Commission or any other applicable federal, state, or local laws, or to promote or provide instructional materials about illegal activities;
11. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of commercial solicitation;
12. upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer codes, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
13. upload, post, email, transmit or otherwise make available any Content or use the Service to interfere with or disrupt the Service, or servers or networks connected to the Service;
14. upload, post, email, transmit or otherwise make available any Content or use the Service to collect or store personal data about other users for commercial purposes or engage in commercial activities, without the Committee's prior approval.

And in case this doesn't cover it, "In addition, you shall be subject to any posted guidelines or rules applicable to such Service, which may be posted from time to time." All this just to read a campaign site!

Oops. I missed this: "You agree not to reproduce, duplicate, copy, sell, exploit, or otherwise use any Content, in full or part, or any use or access to the Service, without the express written consent of the Committee."

Pretend you didn't read this stuff.
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Lawrence D'Oliveiro, 28 Mar 2008 @ 11:59pm

Contract vs Licence
Note there is a difference between a contract and a licence. As I understand it, a contract is something you have to explicitly give some indication of agreeing to, e.g. by putting your signature on a document. Whereas a licence allows you to do something not otherwise permitted, and the fact of your doing it means you agree to the licence.

For instance, tne GNU General Public License is a licence, not a contract. There is no need to sign anything, or click any "I Agree" button, before you're allowed to use, modify and redistribute software covered by the GPL. If you didn't agree to it, then these actions would constitute copyright violation, therefore, the fact of your doing these things must mean you accept the licence.

It's worth noting that open-source software licences are actually crafted on terms that reasonable people can be expected to follow. Whereas closed-source ones often have strange or questionable terms in them, making it seemingly impossible for users to abide by them all (this item being a case in point). For another instance, did you know that the Microsoft Windows licence agreement forbids you from making backup copies of your OS installation?
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Crosbie Fitch (profile), 29 Mar 2008 @ 5:46am

Re: Contract vs Licence
A wee correction...

Agreement with a license is not indicated, and cannot be inferred, by doing something that is permitted by the license but otherwise prohibited (by copyright say).

One always has the choice of ignoring the license, e.g. infringing copyright. Thus a license that says "You may make copies so long as you give me your first born" is not agreed to by dint of the user making otherwise infringing copies.

The same applies when running licensed software in a computer and clicking a box that says "I agree to this license and will give you my first born if I break its terms". If the only way of utilising the software is to click the 'agree' box, then it's not an agreement. An agreement is something made voluntarily, e.g. if there was a second box that said "No, I do not yet agree to the license. I will take my life in my own hands and risk infringing copyright", then to tick the "I agree" box could thus be taken as a voluntary choice to agree. Otherwise, it's a bunch of abusive bunkum.
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Anonymous Coward, 29 Mar 2008 @ 6:02am

Re: Re: Safari EULA
Because this isn't a life/death necessity with no alternative.

Even if it was "a life/death necessity" you would still have an alternative.
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Anonymous Coward, 29 Mar 2008 @ 6:08am

Re: You are forgetting the key part...
Apple FORCED AN INSTALL of Safari on everyone on a PC who upgraded iTunes, even though the resulting EULA forbade installation on that machine!

Well I think it's pretty cool the way Apple pulled that off then. I mean suddenly now they've got a list of probably millions of people that they can drop the "pirate" hammer on whenever they want. I wish I'd thought of it first. I could settle with each one for only $1000 apiece and be an instant billionaire.
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Anonymous Coward, 29 Mar 2008 @ 6:12am

Re: Hillary Clinton EULA
I couldn't help but notice that you didn't cite the URL for where that supposedly came from.
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MLS, 29 Mar 2008 @ 10:17am

Re: Contract vs Licence
Just a point of clarification. In the eyes of the law a license is nothing more than one of many types of contracts. Moreover, the only contracts that must be in writing are those very few that fall under the "Statute of Frauds", a legal doctrine that is a holdover from English common law.
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LBD, 29 Mar 2008 @ 12:44pm

I have an ESLA
I have an agreement that all companies attempting to sell products to me get. It states "The product you have just sold or given to me is mine to do with as I please. This trumps your ELUA. By selling to me you agree with these terms of services"
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Paul Stout (profile), 29 Mar 2008 @ 5:30pm

Re:
A point in your favor. ;-)

A much better stated comment than mine on the same subject a week ago.

I thoroughly agree with your assessment of EULA's.
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Nasch, 29 Mar 2008 @ 10:29pm

Re: Re: Contract vs Licence
Agreement with a license is not indicated, and cannot be inferred, by doing something that is permitted by the license but otherwise prohibited (by copyright say).

One always has the choice of ignoring the license, e.g. infringing copyright. Thus a license that says "You may make copies so long as you give me your first born" is not agreed to by dint of the user making otherwise infringing copies.

I don't know which of you is correct as far as the law goes, that is whether a license is implicitly accepted by complying with its terms. Either way, your example does not prove your case, because making copies without sending in your firstborn would not be permitted by that license.
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Nasch, 29 Mar 2008 @ 10:31pm

Re: Re: Contract vs Licence
Does that mean a license must include both parties exchanging something of value? Do all contracts require that? If so, what do I exchange when I accept a GPL?
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Lawrence D'Oliveiro, 29 Mar 2008 @ 10:52pm

Nonsensical EULAs
Adobe, too.
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Lawrence D'Oliveiro, 29 Mar 2008 @ 11:39pm

Re: Contract vs Licence

Agreement with a license is not indicated, and cannot be inferred, by doing something that is permitted by the license but otherwise prohibited (by copyright say).

That's an interesting legal theory, which doesn't seem to accord with what the lawyers say. For examples of licences drawn up by lawyers that back up my point, consider the GPL v3:
9. Acceptance Not Required for Having Copies. You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

or GPL v2, which has been successfully tested in court:

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
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Crosbie Fitch (profile), 30 Mar 2008 @ 5:03am

Re: Re: Contract vs Licence
Despite a licensor's wish, licenses cannot redefine the law nor the English language. A license cannot extract an agreement from another party simply by fiat.

Agreement can also not be demonstrated by dint of an action that without agreement to the license would be a copyright infringement. A license may assume agreement in this case, but it can't demonstrate it to have occurred. This applies just as much to the GPL as any other license (no matter what the licenses may like to claim - and licenses often overreach as a matter of course).

A person always has the choice between accepting/agreeing to a license or ignoring it - even if they may consequently infringe copyright through lack of the license's conditional authorisation.

Similarly, while a copyrighted work may attach to itself a mechanism that disables use unless some action is performed by the purchaser, that action cannot be construed as signifying agreement to a license by the purchaser (even if the license states that it does). The purchaser is merely performing an action necessary to enable their use of the copyrighted work that they have purchased - use which may or may not infringe copyright.

NB The DMCA only prohibits circumvention of a TPM in order to infringe copyright - not to make non-infringing uses that the TPM otherwise prevents.
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Crosbie Fitch (profile), 30 Mar 2008 @ 6:59am

Re: Re: Re: Contract vs Licence
By way of example, I can walk into a shop, buy a copy of Red Hat Linux, and then sell it to someone for twice the price and refuse to give them any source code. I have ignored the GPL, not agreed to it, and not infringed copyright.

Similarly, I could make a copy, and sell it for twice the price, still without agreeing to the GPL. The GPL may say that this infringes copyright unless I agree to the license, but it remains my choice to ignore/reject the license and infringe copyright - thus opening myself up to prosecution by the copyright holders for infringement.

Fundamentally, an agreement cannot be forced, provided unwittingly, or indicated by coincidence. One may assume or infer agreement, but agreement can only be obtained through the voluntary and informed consent of the agreeing party and this can only be demonstrated if they provide evidence of this consent. NB Evidence of compliance is not evidence of consent.
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Crosbie Fitch (profile), 30 Mar 2008 @ 7:15am

Re: Re: Re: Contract vs Licence
Traditionally one does not need to rustle up a first born instanter. It is simply giving first claim to it, whether born yesterday, in 9 months, 9 years, or never.

Thus if I say "You make copies of my work on condition you give me your first born, and your agreement to this is signified by making copies of my work." according to some folk around here, you don't have a choice of disagreeing and infringing copyright instead. It seems potential copyright infringement permits me to extract your agreement to any terms I fancy (subject to being legal - human trafficing in first borns thankfully being illegal these days).
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Anonymous Coward, 30 Mar 2008 @ 12:16pm

Re: Re: Re: Contract vs Licence
NB The DMCA only prohibits circumvention of a TPM in order to infringe copyright - not to make non-infringing uses that the TPM otherwise prevents.
That statement is about as correct as your claim that copyright infringement is "theft", which isn't very correct either. So lest somebody think that you know what you are talking about and get themselves into trouble, let me clarify the issue.

The Digital Millennium Copyright Act (DMCA) is a United States law which makes it a crime to produce or disseminate technology, devices, or services that are used to circumvent access control measures (e.g. DRM (or TPM)) that control access to copyrighted works. It also makes it a crime to circumvent an access control, even when there is no infringement of copyright itself. So, for example, watching a legitimate DVD (with DRM) on an unlicensed player is a criminal offense even if no copies are made and no copyrights are infringed. That's why there is no legal way to watch such DVDs using Linux (the DVD consortium refuses to license it there).

Now I don't claim to be familiar with the law where you are in Britian, but you certainly don't understand US law very well. And with Techdirt being a US based blog, I think most people expect you to be commenting on the situation in the US unless specified otherwise.
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Anonymous Coward, 30 Mar 2008 @ 12:40pm

Re: Nonsensical EULAs
I think Adobe's lawyers are perfectly familiar with the EULA's they write for Adobe. So while Adobe may try to get away with saying somethin like "Aww garsh, we didn't know we put that in there", I think that's bull. They knew what they wrote. They were just trying to pull a fast one and hoping no one would notice.
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Anonymous Coward, 30 Mar 2008 @ 12:49pm

Re: I have an ESLA
I've been thinking about getting a t-shirt with my own terms in fine print on the front of it and wearing it whenever I go to a store to buy something. It will say, among other things, that by accepting my payment they are agreeing that my terms will supersede all others.
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Miguel Hernandez, 30 Mar 2008 @ 1:46pm

valid point
well said!!
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Larry L, 30 Mar 2008 @ 2:18pm

May be a long while untangling the mess. Companies and individual creators must assert something by way of EULA. Even that does not preclude abuse on the receiver/user end.

It would be great to have an 'anchor point'. Sort of an industry standard set of core principles for licensing (one set of a few sets), that a company would reference and declare 'yes this is our intent' and here are explicit conditions we add that do not counter the core license.

Still, an others have pointed out... when do you get to read these terms and how clear and simple are they written? Nothing like 3 pages of text in a window the size of a business card.

I found this interesting:

http://www.spywareguide.com/analyze/
Copy/paste in the license text and the tool returns some 'flags' about the terms.
"This system is intended to help users identify and focus on software license provisions of particular interest, even when such provisions are embedded within lengthy license agreements."
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Crosbie Fitch (profile), 30 Mar 2008 @ 4:13pm

Re: Re: Re: Re: Contract vs Licence
Here's word from the horse's mouth: http://www.copyright.gov/1201/

I agree that my summation of what circumventions the DMCA prohibits/permits is misleading and inaccurate.

Thanks for pulling me up on it.

Perhaps you will in turn acknowledge that I've never claimed copyright infringement is theft.
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Lawrence D'Oliveiro, 30 Mar 2008 @ 4:48pm

Re: Contract vs Licence

By way of example, I can walk into a shop, buy a copy of Red Hat Linux, and then sell it to someone for twice the price and refuse to give them any source code. I have ignored the GPL, not agreed to it, and not infringed copyright.

I'd really like to see you try it, and see how far you get. Others have tried, and been slapped down pretty smartly.
You really think you'll be more successful? Go ahead--make my day.
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Crosbie Fitch (profile), 31 Mar 2008 @ 1:28am

Re: Re: Contract vs Licence
Lawrence, I think you'll find even RMS himself will agree that I'm correct.

The GPL cannot reach out and mug passersby into agreeing to the licence therein - even if they otherwise infringe copyright.

In the Red Hat example I haven't even infringed copyright, so there's zero legal standing either for infringement or breaking the terms of the license (given it couldn't actually reach out and forcibly extract my agreement without me noticing/consenting).

Admittedly the GPL has taken on some kind of magical aura in the popular consciousness, but it's not actually magical.

The most magical thing is copyright which creates the illusion that there's value in a copy, and that all copies remain the property of the copyright holder.

Abolish copyright and the black magic disappears. Intellectual property then behaves as naturally as any other form of property.
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Lawrence D'Oliveiro, 31 Mar 2008 @ 2:46am

Re: Contract vs Licence

...I think you'll find even RMS himself will agree that I'm correct.

No you're not. Go look at the examples I gave, of companies who were successfully sued into compliance with the GPL.
And while you're at it, here's more explanation, from an actual practising lawyer, who happened to have something to do with the drafting of the GPL, so he should understand more than most what it actually means. In particular, note the following quote:
Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn't say in the event of trouble "But, judge, the licensee promised me he wouldn't do what he's doing now." The licensor plaintiff says 'Judge, the defendant is redistributing my copyrighted work without permission.' The defendant can then either agree that he has no permission, in which case he loses, or assert that his permission is the GPL, in which case he must show that he is obeying its terms. A defendant cannot simultaneously assert that the GPL is valid permission for his distribution and also assert that it is not a valid copyright license, which is why defendants do not 'challenge' the GPL.

Maybe you should start actually reading about some of this stuff, instead of simply continuing to insist you're right?
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Crosbie Fitch (profile), 31 Mar 2008 @ 4:48am

Re: Re: Contract vs Licence
Lawrence, I do read about this.

You'll find that my statement "By way of example, I can walk into a shop, buy a copy of Red Hat Linux, and then sell it to someone for twice the price and refuse to give them any source code. I have ignored the GPL, not agreed to it, and not infringed copyright." is quite true.

Like programmers, not all lawyers are perfect, so it may take a while before you find one who recognises the truth of my statement.

The problem is, consensus often holds more weight than truth, so if the majority of people believe that the GPL prohibits my example (as you appear to) then the truth of the matter is academic.

Try to bear in mind that the GPL is not about constraint, but about its removal, and the preservation of its removal.

And if that's too tricky, just remember "Free as in speech, not as in beer".

And when you find out I'm right, I doubt I'll get any brownie points. You along with many others will simply say I'm just being clever.
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Lawrence D'Oliveiro, 31 Mar 2008 @ 10:34pm

And now Microsoft ...
... gets bitten in the bum!
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Lawrence D'Oliveiro, 31 Mar 2008 @ 10:40pm

Re: Contract vs Licence

...it may take a while before you find [a lawyer] who recognises the truth of my statement.

There are no practising lawyers who "recognize the truth" of your statement. None. The difference between your attempts at arguments and the GPL is that the GPL has passed every test to which it has been subjected, whereas your arguments have not. It's as simple as that.
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Crosbie Fitch (profile), 1 Apr 2008 @ 1:00am

Re: Re: Contract vs Licence
It is possible the standard of practising lawyers is so low none would recognise the truth of my statement, but you at least should come to recognise its truth in time. Get back to me when you do.

We could even stage the event in public. I could walk into a shop and buy a copy of Red Hat Linux (or similar GPL licensed software package) and sell it to you for twice the price (if you were willing to pay that much to see me arrested), I could then refuse to give you any source code, deny being subject to the GPL given no agreement to it, and claim I'm neither subject to a license nor that I've infringed copyright. You can then have me arrested for alleged violation of the GPL. We'll then see if any lawyers dare to defend my view that I've neither committed a crime, nor infringed copyright.

This is on the assumption the law doesn't change in the intervening period...
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Lawrence D'Oliveiro, 1 Apr 2008 @ 3:35am

Re: Contract vs Licence
In case you don't believe the lawyers, perhaps you'll believe a judge?

And admit that your arguments not only lack credibility, they don't even make sense?
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Lawrence D'Oliveiro, 1 Apr 2008 @ 3:46am

Re: Contract vs Licence
English translation of the judgement here.
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Crosbie Fitch (profile), 1 Apr 2008 @ 5:50am

Re: Re: Contract vs Licence
Lawrence, it's all very well citing cases that involve infringement/license violation of GPL licensed works, but they are not at all germane to the example I've given.

Present a case where someone has been prosecuted for conducting themselves as I describe in my example.

Failing that (as I suspect you will), find someone (especially a member of FSF or similar) who will say that they can be prosecuted and can demonstrate why.
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ike, 15 Jul 2008 @ 11:26pm

which would suggest that they'd be violating Apple's license (and therefore infringing copyright) if they installed Safari at all.

I was under the impression that breaking the EULA is handled by contract law, not Copyright law.
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WNight, 6 Aug 2008 @ 11:50pm

GPL
Crosbie is right, because reselling Redhat in the form you acquired it involves no duplication of the software and thus no potential copyright infringement. The situation would be different if he downloaded Redhat and burnt the CDs himself, as he would be duplicating it and thus need permission.

It's exactly the same argument against Apple's right to control OS X - no copying was done, the disk merely changed hands.

The GPL also seems to fail to stop you from downloading a copy of Redhat (from Redhat, thus they did the copying, not you and the copy is legit) and selling the drive it's on. It's obvious that Redhat's server GAVE you the copy - as long as you don't make another you're still working with the fully legit one you were given. But this isn't really a loophole, because Redhat, the duplicator of the software, would be obligated to provide source in the usual fashion and you'd essentially just be selling someone a pre-cached download.

A web-server giving you a file like a person handing you a pamphlet. Nothing gives you copyright over the data, but through common-sense reasoning you can infer that you must have the right to read/use the data as it appears to be intended (ie, read pamphlet, run software, etc) because the owner of that right gave you (made you owner of) this copy knowing what it would be used for. Thus when you visit CNN.com for instance, they're essentially giving you digital newspaper clippings. You own that clipping and can keep it, backing it up even, as you would any other software or data (music, etc) you own.
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Lawrence D'Oliveiro, 10 Sep 2008 @ 3:08am

Re: Nonsensical EULAs
Just thought I'd add this illustration of how nonsensical Microsoft's licensing has become. If even Microsoft cannot explain it without tying itself in knots, what hope do the users have?
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