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Court Ruling Clouds Open Source Licensing
JosefAssad writes "In a decision centering around a question of a violation of the Artistic License, a San Francisco court has denied an injunction against Matthew Katzer in the favor of Robert Jacobsen of the JMRI project. Importantly, the decision makes the point that the Artistic License is a contract, an interpretation that the Free Software Foundation has been keen to avoid as a legal stance. The JMRI project has a page up with the legal background and developments."
So what does this do for EULA? Do all the obnoxious terms of use suddenly vaporize? Can people now publish Oracle studies? Can I now use Front Page to say bad things about M$? Can I now use Windoze under as many VMs as I want and serve it with Xforwarding or as a web service because, I'm not really making a copy and that's all that copyright halts? I can see all sorts of ways the non free software world will rue the day copyright was weakened.
Friends don't help friends install M$ junk.
People have been complaining about the clarity of the Artistic License for years. I don't see this having any significant effect on any other Free Software licenses, especially not the GPL (since the GPL is explicitly designed as a copyright license rather than as a contract).
-- The act of censorship is always worse than whatever is being censored. Always.
Looking at all this legal mumbo-jumbo (going through the chronology etc) makes me realize there was actually some sort of upside to just having it out with knives...
IANAL, but I think the Oracle studies parts are probably quite challengable and probably difficult to enforce. The question is, how much money do you want to pay to prove that to a court?
Contract law does change a number of things, but it doesn't cause EULA's to vaporize. They are after all "End User License *Agreements*" where "Agreement" is used to imply a contract relationship.
I would also note that the GPLv3 has dropped all pretenses of being anything other than a contract. It doesn't state that it isn't a contract anymore, and certain clauses go well beyond copyright agreements (i.e. they give some people the right to manage terms of a copyright license independant of any copyrights of their own).
Personally, though IANAL, I think the differences are subtle but not altogether meaningless.
LedgerSMB: Open source Accounting/ERP
The GPLv3 is still structured as a license (or a set of licenses, with the patent clauses) rather than as a contract. It still only triggers on things that would violate copyright law (modification and distribution) rather than use. What, specifically, would make you think otherwise?
-- The act of censorship is always worse than whatever is being censored. Always.
First of all, as another posted pointed out, the GPL hasn't been tested in a US court; more generally. it is not a magic bullet that guarantees your software will be Henceforth And Forever Free, and it would be nice if people would stop assuming it is. Second, not everyone wants their software to be "Free" in the way RMS does -- the Artistic License is a nice middle ground between the GPL and the BSD, it's the license under which one of the most popular pieces of software ever written (Perl) is released, and it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Is it? Does anyone even know what the actual results of the legal text are? As far as I can tell, it basically says "you can't modify unmodified copies" and "you can't sell this software, but you can charge money for it".
Licenses only do things that they actually say, not things that someone hopes they say. Licenses are one of the places where just trying isn't good enough - you have to get it right. The Artistic License got it wrong enough that even the Perl people aren't using it for anything new - they're using a revised version that's significantly more clear.
-- The act of censorship is always worse than whatever is being censored. Always.
What's suddenly very unclear here is the difference between a 'license' and a 'contract'.
The terminology is meaningless.
You can call it anything you want, but that does not change what the GPL or any other license says and what that's based on. These things are based on copyright, where the author alone has the right to publish works. That power must be absolute to be worth anything. Copyleft licenses generously give people that right as long as they agree to a few simple conditions. People who refuse to obey those conditions lose their right to distribute.
The fact that copyleft authors are not collecting money should not be held against them because they are doing what copyright law was designed to encourage. In every other copyright violation case, the authors are allowed an injunction because the rogue publication does the author real financial harm. That harm, for a limited time, is held greater than the good done by extra publication. In the copyleft case, harm is also done to the author and the public. The author is deprived of control of work and potential revenue, which should not be ignored any more than the revenue from a previously unpublished work. The public is also deprived of their freedom. That freedom has motivated publication of lots of high quality software. If the purpose of copyright is to encourage the creation and distribution of public works, software freedom must be protected and preserved.
If these jokers managed to weaken copyright, they will undo the power that also protects most non free software. You can't weaken control of free work without weakening that of non free work and because non free publishers depend on so much more control, that weakening will be more important to them.
Friends don't help friends install M$ junk.
The difference between 'license' vs 'contract' has been explained on Groklaw, several times. Please visit the site, look it up and get educated.
Undetectable Steganography? Yep, there's an app fo
The GPL has never been tested in a US court.
False
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
since you are the only layer who reads /. regularly
Now, just wait a damned minute there. I lay on a regular basis. It's one of the benefits of being married.
All that is necessary for the triumph of good is that evil men do nothing.
A contract requires the informed consent of both parties entering the agreement. It has yet to be proven in a court of law that clicking an 'OK' button equates to informed consent, especially if the terms of the "agreement" are not presented prior to the purchase.
Support Right To Repair Legislation.
IANAL, but Oracle has a solid case, just like Lexmark had a solid case against SCC for slavishly copying the copyrighted software from their toner unit chips. Yet SCC prevailed in a defense of copyright misuse.
Oracle's case amounts to "You agreed to it." The attack on it might relate to questions of contracts of adhesion, procedural unconscionablily, competition law, or the like. In short, I think there is a good chance based on other contracts which have been voided that with enough time and effort, this clause might be vulnerable.
I believe that there are a number of bases relating to consumer contract law and copyright law which could be used to attack the Oracle clause. I have neither the money nor the time for such a fight though, and I would sooner pick a fight with some dual-license vendor over whether linking means derivation (because that equation is closer to my business than anything to do with Oracle).
As for your points regarding the GPL v3, I do agree that there are *serious* concerns that the license might be so far overreaching that it might be unenforceable on the basis of copyright misuse (particularly the implications of section 7 as relates to the Complete Corresponding Source Code). However, I do not see this being a viable method of attaching the GPL v2. One bit of analysis which makes similar claims is a bit of legal analysis mentioned in my latest journal entry (Why I Hesitate....).
The major arguments that I have seen relating to the GPL v2 are:
1) Section 2(b) could be seen as overreaching and pushing the limits of copyright law, laying claim to code that the author has no right to claim. This claim usually fails to mention at all the "mere aggregation" clause which would seem to include any work including the program other than a derivative work.
2) That the GPL is copyright misuse because it attacks the very system that copyright law was set up to protect. I would find this difficult to imagine in a court opinion because of the number of businesses which have successfully used the GPL to protect Thus the courts should not prevent businesses from deviating from standard licensing models just because they are at some point unusual.
Furthermore, the GPL v2 can be read easily as being fairly limited in scope (only those works where sufficient creative content is transferred could be derivative works, and mere dynamic linking would probably not apply. As such, the FSF's faq to the contrary, the scope of the effect of the GPL v2 may actually be quite limited. (This is not the case with the GPL v3.)
My most recent journal entry has a bunch of information on the GPL v2 and v3 as it relates to one of my projects.
LedgerSMB: Open source Accounting/ERP
The fact that the terms of the GPL are triggered by copyright doesn't magically mean that it can't be viewed as a contract by a court.
A contract requires the informed consent of both parties entering the agreement. It has yet to be proven in a court of law that clicking an 'OK' button equates to informed consent, especially if the terms of the "agreement" are not presented prior to the purchase.
... Many courts that have analyzed these issues have ruled that clickwrap and shrinkwrap agreements are indeed binding, even against consumers. The courts have emphasized that sellers are entitled to offer a product on any terms they wish, and that shrinkwrap and clickswrap are the most efficient methods of including complicated terms in a small space. Think before you click!(8)
... The plaintiffs clicked to download. If, instead of downloading they had scrolled further down, they would have seen an invitation to 'review and agree to the terms of the Netscape SmartDownload software license agreement.' ... Receipt of a physical document containing contract terms or notice thereof is frequently deemed, in the world of paper transactions, a sufficient circumstance to place the offeree on inquiry notice of those terms. These principles apply equally to the emergent world of online product delivery, pop-up screens, hyperlinked pages, clickwrap licensing, scrollable documents ... We are not persuaded that a reasonably prudent oferee in these circumstances would have known of the existence of license terms. Plaintiffs were responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms. ... a reference to the existence of license terms on a submerged screen is not sufficient to place consumers in inquiry or consctrucive notice of those terms."
Clickwrap and Shrinkwrap are enforcible contracts. From 2007, Beatty and Samuelson, Business Law and the Legal Environment: Standard Edition, 4th edition, Chapter 11 - Agreements, p. 265:
"Cyberlaw. Clickwraps and Shrinkwraps.
(8) ProCD, Inc. v. Zeidenbert, 86 F3d 1447 (7th Cir. 1996), is the leading case to enforce shrinkwrap agreements (and, by extension, clickwraps). Klocek v. Gateway, 104 F. Supp. 1332 (D. Kan, 2000) is one of the few cases to reject such contracts. Klocek, however, was dismissed for failure to reach the federal court $75,000 jurisdic tional level."
As you suggest submerged agreements are a problem, however making the terms visible before clicking is valid and clicking "I Agree" is valid. The following shows why the license is shown first on many download pages, or by installers, it corrects the "submerging" defect. And why "I Agree" rather than "OK" is used, it corrects the ambiguous defect. Not activating "I Agree" until after all of the agreement has scrolled by is a nice addition. P. 266:
"Specht v. Netscape Communications Corporation", 306 F.3d 17, Second Circuit Court of Appeals, 2002.
Apologies for the typos.
There's a popular idea that when anything on a public forum like Slashdot might be harmful to certain parties, this sort of sexual blather gets put in the thread so that porn and obscenity filters keep it out of many hands. Microsoft is the usual suspect, and the parent of the sex blather is questioning the effects on MS's EULA.
I'm not drawing any conclusions here, and I don't think anyone should at this point. It is an interesting theory, and this would be a prime example if it's true.