Seriously, where the hell do people get this idea of creative artists sitting on their work like evil geniuses, expressly to prevent somebody else from using it? That's not the way it works. Hell, I challenge you to name one author who has done it, just one.
I'm sure it's not the general rule at all - I talk to authors regularly (mainly to say thank you for books I enjoy, but also as part of research), and I have yet to come across any who would sit on a work, as you suggest, to prevent publication. Disney, as you say, sounds like the exception - but a powerful one - although, since I have only spoken with a small sample of authors, I could not be sure that there were not more. That being said, many authors are keen to exploit the monopoly of control granted by copyright - relatively few authors dedicate their latest book to the public domain.
But, the system, if not the authors, does not support the making available of books once the initial rush has died down - as you say, it is a matter of economics as to what gets published. However, if it is no longer economic to publish, then the author no longer makes any money from sales (since the books are not available to buy new, once stocks are depleted), and so it strikes me that there is very little reason to maintain a restriction over the book.
However, perhaps the author is not the person capable of making the decision - that the decision for this kind of release is reserved to the publisher, either under the agreement to publish, or else by assignment of the copyright to the publisher. Perhaps if the author were to retain the rights to reissue the work under his own terms once publication ceases, we would have a far healthier system of older books and works. Or, better still, divest the work to the public domain once the book is no longer published, although this is likely to raise the not-inconsiderable hackles of those who do want to use control as a mechanism for raising price / sustainability. The strength of opposition to Google Books suggest that at least some publishers and/or authors are against making texts available.
Most books are not edited anymore, but copying them instead of letting the content die is forbidden.
I too did not understand the editing point. However, if one replaces "edited" with "published", then it makes more sense - only a fraction of the literature that has even been written is still published or sold - there are many, many works which one can no longer buy, otherwise than finding a copy in a second hand bookshop or the like.
However, despite these works not being available on the market (i.e. the knowledge within the works cannot be further disseminated to society), it remains an infringement of copyright to copy them - copying them, making their otherwise-unavailable content available once again, is forbidden, in favour of the letting the work, and its knowledge, die away (at least until the term of protection of copyright expires).
I suppose that some would look to promote a claim of "moral rights" - that the author should be permitted to allow the book to sit, unavailable, after a limited print run, although I struggle somewhat with this, if protection really is granted for the advancement of learning, society and knowledge. Were the law to provide proceeds of resale to authors, then, I could understand this more (i.e. that, by maintaining artificial scarcity, the price of the few copies available is artificially elevated above that which would be supported in a market in which the number of copies was not restricted, with the author receiving part of each onwards sale), but, it does not - otherwise than a feeling of control, does an author really benefit, if he has no plan to reissue the work? (I appreciate that this is what some do- in particular, media companies which periodically release, then withdraw, their works, so that, when re-released, a new generation buys them, having previously been unable to do so.)
(I do not necessarily support a system based on this practice, but merely could understand the claim against copying unavailable works more if it were the case.)
I mean seriously. These are the same group of dickfaces who tried to sue 5-year-olds for singing songs at summer camp. [steinski.com] No joke.
For those who are not going to click the link, the material referenced there is from David Bollier's book "Brand Name Bullies".
That is still on my bookshelf, but I can highly recommend Bollier's work generally, as a promotion of the concept of a "commons" - "Silent Theft" being a prime example, or, for those who prefer shorter reading matter, Bollier's paper, which gave rise to the book, "Public Assets, Private Profits".
(As a lawyer with a keen interest in this area, I'm a big fan of David's work, and his easy-to-access writing style.)
Those adapters require you to install software(ATT Connection manager in their case) that's only supported on Windows and Mac, and that software is required to "authenticate" your computer and use the network.
(Disclaimer - I work for Vodafone, albeit as a lawyer)
I have never tried with one of the PCMIA cards, but, most Huawei modems will work fine under Linux - you might need usb-modeswitch to flip it into modem mode (as opposed to mass storage mode), but, otherwise, it should not be a problem.
If using Network Manager (works automatically under Linux Mint 7 and 8), or tinkering with ppp (this was not difficult using Xandros on an Asus EEE 701), is not your thing, Vodafone has also released a version of the Vodafone Mobile Connect client for Linux, which should work with any provider's SIM. More details at Betavine. It's gui-driven, and should be usable by those without a particular interest in how/why things work.
We also do our best to support those in need of assistance, irrespective of provider, but, since it's just a few of the R&D team, and (very occasionally now) me, it really is a "best efforts" rather than a "guaranteed support" environment.
is there not implied contract between a user and open source software distributor if exaggerated claims are made about the software? I'm thinking carlille v smokeball co although that's a bit of a leap if the distribution of OSS, as you say, isn't a sale of goods/services. At least in carlille, something was purchased based on claims made by the manufacturer allbeit, pre-SoGA.
So, Carlill deals with the principle as to whether a statement, if it is sufficiently precise and capable of acceptance, can amount to an offer, rather than invitation to treat, which is accepted by someone acting in accordance with the statements. The breach of contract, in the case, was that the smoke ball did not live up to the marketing bumpf along with (what was found to be) the offer.
The formation of the contract, and the ensuing breach of the contract, are two different things, and Carlill really relates to the former. To that end, merely exaggerating the functionality of one's product does not necessarily give rise to a contract, but rather than, where there is a contract, claims made in marketing may be considered terms of that contract. The particular point in Carlill was that the marketing spiel was one of terms, through virtue of it being part of the offer; under SoGA, marketing spiel might be considered a term where the sale is one "by description".
I was always under the impression that payment in money doesn't have to change hands for SoGA s14 still to apply.
You may well be aware of a case of which I'm not; I'm not a "contract lawyer":)
Although, applying other value "payment" argument to open Source would be pretty difficult indeed, e.g. contribution to fix other bugs and so on.
It depends on how far you want to go; you seem to have some English law knowledge, so, if it's of interest, you might like to wander through the various cases dealing with consideration, and the different ways consideration can arise. However, rather than looking for the situations in which there might or might not be consideration for the purposes of SoGA, one would need to have consideration for there even to be a contract; without a contract, there is no SoGA protection- and a licence requires no consideration, since one need not accept a licence, or, indeed, even be aware of it, under English law (I am not sure about other jurisdictions), since a licence is a bare permission, absent which the act in question is a tort. (For example, I can say "You may use this paragraph in your essay without attributing it to me", and, you need not accept it, since it is a bare permission. Without my permission, doing that act would amount to an infringement of my copyright, whereas, with my permission, it is not.)
Similarly, the rules of consideration have weakened / changed considerably since the days of Stilk v Myrick, with Williams v. Roffey perhaps being the best example of this - that "obviation of disbenefit" is good consideration, even though the builder was already contractually entitled to the performance of his sub-contractor.
However, one needs to get over the hurdle that, for SoGA to apply, there needs to be a contract, and, for there to be a contract, there needs to be consideration. On the basis, then, that SoGA, since it applies to contracts, already has a requirement of consideration, a statement that it applies where there is "money consideration", would seem to refine the consideration which is valid for the purposes of SoGA, which, to my mind, means that consideration in the wider sense is not relevant, and that it does, indeed, need to be money. (An exchange of property might be "money's worth", but, it is still not "money".)
But, as I say - I am not a "contract lawyer", and my contract law may well be rusty.
I'm not sure I follow your argument - the availibility of a service in a country may well give rise to decisions in favour of the claimant, even though the service provider has no presence in the country in question.Entores applies to contractual disputes alone - availability of a service in a particular country may well trigger liability in that country, under that country's local laws, and may well be enforceable (it might require registration) in the country in which the service was provided. (The main value of the Entores decision is the determination as to what constituted receipt for instantaneous communications - the jurisdiction issue, whilst the main point of the action of the case, is only part of the background matrix to the case, to my mind.
Even in terms of contractual disputes, within European, jurisdiction can be seized without recourse to the "communication"; for example, under the EC Convention on the Law Applicable to Contractual Obligations (Rome 1).
How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Probably - and it would make sense - but, I wasn't sufficiently sure that this was the case to make an absolute statment.
Another thing with open source, is you often do not download it from the author.... if there is a transfer of property, who is it from? The author or the download mirror? If its a torrent, does that change anything?
This is another clear example of why SoGA does not sit comfortably with software, being, as it is, phrased in terms of "transfer of property". In a non-digital world, equating notions of property and ownership is relatively straightforward; when one transfers a box of eggs to another under a contract of sale, the intention is to transfer the ownership of that box of eggs, and so physical transfer mimics (to an extent - since title may not pass with delivery) the transfer of ownership - a transfer of possession without a transfer of ownership/title is generally considered a loan, just as retention of possession without ownership under a right is generally considered a lien.
Of course, this does not work well in a digital world, where many distributors are wishing to avoid a transfer of ownership. However, to my mind, the mechanism used for the transfer is still largely irrelevant - the fact that you might buy some eggs from me, and I choose to deliver them to you myself, or else deliver them to DHL, which delivers them to you, or else I give them, does not affect the transfer of title; this passes from me to you, even though I use an intermediary to effect the transfer of possession.
When one looks at the GPL, for example, there is no right to sub-license; the owner of a particular copyright work within a GPL'd file licences that work directly to the recipient, even if there are many layers of transfer in between. No matter what transfer mechanism is used, the licence is still granted from the owner to the eventual recipient, directly.
SoGA requires a consideration - that needn't be cash, it could be in the form of a service or the transfer of some other goods or chattels
I think there is some confusion between the requirements of a contract (of which consideration, which need not be money, is one element), and contracts to which SoGA applies (sales for "money consideration"). To fall under SoGA, amongst other things, there must be "money consideration", and so a service, or transfer of other goods (e.g. bartering) is insufficient.
So, no, cash is not required, since cash is a specific form of money, but non-money consideration is insufficient.
That should mean that patching for security etc, should be available for a reasonable period as a right.
Or that the product should be secure against vulnerabilities known to be prevalent at the time at which the software was sold. I would not read it as implying an ongoing duty to provide patches against unknown threats.
There might be more of a debate about threats which, whilst known at the time of sale, were purely theoretical, with no realistic prospect of being a real vulnerability, but which, some point after the sale, became exploitable in the real world. However, in this case, I'd expect a court to take a position of what is reasonable, and to consider that a possible, but, highly unlikely, threat, was not a defect, unless the product was sold as being "secure against all known threats", or the like.
Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I think that this would depend on exactly what you meant. Distribution of software alone (i.e. without embodiment in a physical object, be it a computer or a CD), may not meet the definition of a "good". Similarly, SoGA applies to "contracts of sale of goods"; in the case of open source software distribution, there are likely to be arguments as to whether:
there is a contract (since a licence is a bare permission, and not a contract - but not all documents claiming to be licences are necessarily licences, and may, in fact, be contracts)
there is a sale, since s2, SOGA77, provides that "A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price", and, if there is no exchange of money, it is questionable whethere there would be a "money consideration".
Similarly, in the case of a physical download, it is questionable whether there has been a "transfer [of] property".
However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.
This is, perhaps, a risky statement, given that a contractual remedy should put the detrimented party in the position as if the contract had been properly performed, unless the measure of damages for a claim in tort, for which the remedy is the preservation of the status quo (i.e. putting the detrimented party in the position as if the tortious act had never happened).
As such, the fact that the licensor has made very little from the software does not mean that the licensee could only receive very little in terms of compensation, unless the licensor has an enforceable limitation of liability clause - and, a judge may be more inclined to find that, where the product was distributed without charge, that such a limitation was reasonable. However, without a limitation of liability clause in the agreement, it might be harder to find grounds to limit recovery, where the loss suffered by the licensee, as a result of a contractual breach, was significant.
However, the presence of a bug, or the failure of a piece of software to perform in a particular manner, is not necessarily a contractual breach - it would depends on the terms of the contract.
Section 14 in the Sale of Goods act determines quality
However, s14 only applies to business-consumer contracts ("Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality."), and so one would need to assess whether the hobbyist distributing code a business - merely charging for an item does not make one a "business".
In other words, it depends; there are likely to be situations in which SoGA does apply to open source software (or, to my mind, a physical item embodying open source software, which might then give rise to claims against the software embodied in that product directly), but also many situations in which is does not.
(IAAL, who does a lot of work with Free software, but, these are just my personal views)
Although, in this case, despite being a business, the recipient / purchaser was treated as a consumer, given the one-sided nature of the negotiations in respect of the clause in question. (I.e. doing business on the other side's standard terms.)
Similarly, had there been sufficient opportuntiy for the purchaser to test the product, rather than relying on a demonstration by the vendor, the outcome may have been different; as, potentially, would have been the case in which the vendor had pointed out that the software had particular known problems / lack of support in certain areas.
as mentioned earlier, why should someone be accountable for the results of deliberate attacks? no other industry does that.
I'm less sure:
As a lawyer, I draft a contract for a client, to set out the relationship between him, and a third party.
The relationship breaks down, and ends up in litigation.
The third party looks for every possible weakness in the contract, anything which could be in their favour.
The third party wins.
I get sued for negligence, for drafting a contract which did not adequately protect my client.
"My" contract was being deliberately attacked, and failed to protect my client, but, I'd expect to be accountable for that.
I see your point, but think about what you're saying. So it would be OK for a submission to the Harvard Medical Journal to write "Our studies indicate that the treatment for this particular disease was successful:^)"
Yes - that's exactly what I am saying; if the emoticon represents a better (inherently subjective, of course) way of conveying emotion in prose, then, I am not against the idea simply because it might look out of place, when compared with today's standards.
Emoticons are simply forms of expressing a particular feeling or intensity, in the same way as an exclamation mark. Is the only difference that exclamation marks are considered acceptable, because they are, in some way, traditional?
a.) Standardise on plugs: you've pick US for size, whereas I use UK because it's all I've got
b.) Bring a break-out / multi-way unit: you use a block, whereas I use a strip
c.) Bring one converter: yours seems fancier than mine
Bletchley Park - within striking distance of London - the war-time code breaking centre.
Science Musuem - I was actually disappointed last time I visited the telecommunications exhibit, but the computation and maths exhibits are fascinating.
Natural History Musem - even if just to see the huge dinosaur in the entrance hall, which amazes me every time.
Greenwich - depends on your geekiness, but, you might enjoy visiting the Prime Meridian, in the courtyard of the Royal Observatory
Perhaps the geekiness has got to me, but, I always travel with a computer - for me, currently, my netbook, simply for size and battery life reasons - it's not a huge weight if I don't use it, it's encrypted and everything important is backed-up on my server back at home in case I lose it / it gets stolen, and is great for whiling away time at airports, checking what's going on wherever I am, as well as just keeping up with my email - different strokes for different folks, but, I prefer to be in touch and accessible (but not necessarily to work colleagues) when I'm away.
I wouldn't think too much about it, though - just pick up a plug adapter. If you're going to be bringing lots of powered appliances / chargers, I tend to find the cheapest / easiest solution is to bring a multi-way extender, and one plug adapter, rather than lots of plug adapters (although this is a habit I started for business travel, I now pack this for personal travel too, especially when travelling with my girlfriend, since it just makes things easier for charging phones, iPods etc.).
Feel free to drop by one of the local LUGs, if you're a Linux user, or just fancy a geeky chat - SCLUG's my local, down in Reading (about 25 minutes on the train, from Paddington, London) - or just message me on here, since I enjoy meeting new people!
As a lawyer working in the area, I highly recommend Boyle's book, 'The Public Domain' - available under a Creative Commons licence, as well as in dead-tree format.
A fascinating (and easy to read) discussion about the concept of 'the public domain', which is well worth reading for anyone who cares about the future of technological development / societal impact of overbearing IP regulation etc.
Slashdot Mirror
Seriously, where the hell do people get this idea of creative artists sitting on their work like evil geniuses, expressly to prevent somebody else from using it? That's not the way it works. Hell, I challenge you to name one author who has done it, just one.
I'm sure it's not the general rule at all - I talk to authors regularly (mainly to say thank you for books I enjoy, but also as part of research), and I have yet to come across any who would sit on a work, as you suggest, to prevent publication. Disney, as you say, sounds like the exception - but a powerful one - although, since I have only spoken with a small sample of authors, I could not be sure that there were not more. That being said, many authors are keen to exploit the monopoly of control granted by copyright - relatively few authors dedicate their latest book to the public domain.
But, the system, if not the authors, does not support the making available of books once the initial rush has died down - as you say, it is a matter of economics as to what gets published. However, if it is no longer economic to publish, then the author no longer makes any money from sales (since the books are not available to buy new, once stocks are depleted), and so it strikes me that there is very little reason to maintain a restriction over the book.
However, perhaps the author is not the person capable of making the decision - that the decision for this kind of release is reserved to the publisher, either under the agreement to publish, or else by assignment of the copyright to the publisher. Perhaps if the author were to retain the rights to reissue the work under his own terms once publication ceases, we would have a far healthier system of older books and works. Or, better still, divest the work to the public domain once the book is no longer published, although this is likely to raise the not-inconsiderable hackles of those who do want to use control as a mechanism for raising price / sustainability. The strength of opposition to Google Books suggest that at least some publishers and/or authors are against making texts available.
Most books are not edited anymore, but copying them instead of letting the content die is forbidden.
I too did not understand the editing point. However, if one replaces "edited" with "published", then it makes more sense - only a fraction of the literature that has even been written is still published or sold - there are many, many works which one can no longer buy, otherwise than finding a copy in a second hand bookshop or the like.
However, despite these works not being available on the market (i.e. the knowledge within the works cannot be further disseminated to society), it remains an infringement of copyright to copy them - copying them, making their otherwise-unavailable content available once again, is forbidden, in favour of the letting the work, and its knowledge, die away (at least until the term of protection of copyright expires).
I suppose that some would look to promote a claim of "moral rights" - that the author should be permitted to allow the book to sit, unavailable, after a limited print run, although I struggle somewhat with this, if protection really is granted for the advancement of learning, society and knowledge. Were the law to provide proceeds of resale to authors, then, I could understand this more (i.e. that, by maintaining artificial scarcity, the price of the few copies available is artificially elevated above that which would be supported in a market in which the number of copies was not restricted, with the author receiving part of each onwards sale), but, it does not - otherwise than a feeling of control, does an author really benefit, if he has no plan to reissue the work? (I appreciate that this is what some do- in particular, media companies which periodically release, then withdraw, their works, so that, when re-released, a new generation buys them, having previously been unable to do so.)
(I do not necessarily support a system based on this practice, but merely could understand the claim against copying unavailable works more if it were the case.)
I mean seriously. These are the same group of dickfaces who tried to sue 5-year-olds for singing songs at summer camp. [steinski.com] No joke.
For those who are not going to click the link, the material referenced there is from David Bollier's book "Brand Name Bullies".
That is still on my bookshelf, but I can highly recommend Bollier's work generally, as a promotion of the concept of a "commons" - "Silent Theft" being a prime example, or, for those who prefer shorter reading matter, Bollier's paper, which gave rise to the book, "Public Assets, Private Profits".
(As a lawyer with a keen interest in this area, I'm a big fan of David's work, and his easy-to-access writing style.)
Those adapters require you to install software(ATT Connection manager in their case) that's only supported on Windows and Mac, and that software is required to "authenticate" your computer and use the network.
(Disclaimer - I work for Vodafone, albeit as a lawyer)
I have never tried with one of the PCMIA cards, but, most Huawei modems will work fine under Linux - you might need usb-modeswitch to flip it into modem mode (as opposed to mass storage mode), but, otherwise, it should not be a problem.
If using Network Manager (works automatically under Linux Mint 7 and 8), or tinkering with ppp (this was not difficult using Xandros on an Asus EEE 701), is not your thing, Vodafone has also released a version of the Vodafone Mobile Connect client for Linux, which should work with any provider's SIM. More details at Betavine. It's gui-driven, and should be usable by those without a particular interest in how/why things work.
We also do our best to support those in need of assistance, irrespective of provider, but, since it's just a few of the R&D team, and (very occasionally now) me, it really is a "best efforts" rather than a "guaranteed support" environment.
You're more than welcome.
is there not implied contract between a user and open source software distributor if exaggerated claims are made about the software? I'm thinking carlille v smokeball co although that's a bit of a leap if the distribution of OSS, as you say, isn't a sale of goods/services. At least in carlille, something was purchased based on claims made by the manufacturer allbeit, pre-SoGA.
So, Carlill deals with the principle as to whether a statement, if it is sufficiently precise and capable of acceptance, can amount to an offer, rather than invitation to treat, which is accepted by someone acting in accordance with the statements. The breach of contract, in the case, was that the smoke ball did not live up to the marketing bumpf along with (what was found to be) the offer.
The formation of the contract, and the ensuing breach of the contract, are two different things, and Carlill really relates to the former. To that end, merely exaggerating the functionality of one's product does not necessarily give rise to a contract, but rather than, where there is a contract, claims made in marketing may be considered terms of that contract. The particular point in Carlill was that the marketing spiel was one of terms, through virtue of it being part of the offer; under SoGA, marketing spiel might be considered a term where the sale is one "by description".
I was always under the impression that payment in money doesn't have to change hands for SoGA s14 still to apply.
You may well be aware of a case of which I'm not; I'm not a "contract lawyer" :)
Although, applying other value "payment" argument to open Source would be pretty difficult indeed, e.g. contribution to fix other bugs and so on.
It depends on how far you want to go; you seem to have some English law knowledge, so, if it's of interest, you might like to wander through the various cases dealing with consideration, and the different ways consideration can arise. However, rather than looking for the situations in which there might or might not be consideration for the purposes of SoGA, one would need to have consideration for there even to be a contract; without a contract, there is no SoGA protection- and a licence requires no consideration, since one need not accept a licence, or, indeed, even be aware of it, under English law (I am not sure about other jurisdictions), since a licence is a bare permission, absent which the act in question is a tort. (For example, I can say "You may use this paragraph in your essay without attributing it to me", and, you need not accept it, since it is a bare permission. Without my permission, doing that act would amount to an infringement of my copyright, whereas, with my permission, it is not.)
Similarly, the rules of consideration have weakened / changed considerably since the days of Stilk v Myrick, with Williams v. Roffey perhaps being the best example of this - that "obviation of disbenefit" is good consideration, even though the builder was already contractually entitled to the performance of his sub-contractor.
However, one needs to get over the hurdle that, for SoGA to apply, there needs to be a contract, and, for there to be a contract, there needs to be consideration. On the basis, then, that SoGA, since it applies to contracts, already has a requirement of consideration, a statement that it applies where there is "money consideration", would seem to refine the consideration which is valid for the purposes of SoGA, which, to my mind, means that consideration in the wider sense is not relevant, and that it does, indeed, need to be money. (An exchange of property might be "money's worth", but, it is still not "money".)
But, as I say - I am not a "contract lawyer", and my contract law may well be rusty.
I'm not sure I follow your argument - the availibility of a service in a country may well give rise to decisions in favour of the claimant, even though the service provider has no presence in the country in question.Entores applies to contractual disputes alone - availability of a service in a particular country may well trigger liability in that country, under that country's local laws, and may well be enforceable (it might require registration) in the country in which the service was provided. (The main value of the Entores decision is the determination as to what constituted receipt for instantaneous communications - the jurisdiction issue, whilst the main point of the action of the case, is only part of the background matrix to the case, to my mind.
Even in terms of contractual disputes, within European, jurisdiction can be seized without recourse to the "communication"; for example, under the EC Convention on the Law Applicable to Contractual Obligations (Rome 1).
How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Probably - and it would make sense - but, I wasn't sufficiently sure that this was the case to make an absolute statment.
Another thing with open source, is you often do not download it from the author. ... if there is a transfer of property, who is it from? The author or the download mirror? If its a torrent, does that change anything?
This is another clear example of why SoGA does not sit comfortably with software, being, as it is, phrased in terms of "transfer of property". In a non-digital world, equating notions of property and ownership is relatively straightforward; when one transfers a box of eggs to another under a contract of sale, the intention is to transfer the ownership of that box of eggs, and so physical transfer mimics (to an extent - since title may not pass with delivery) the transfer of ownership - a transfer of possession without a transfer of ownership/title is generally considered a loan, just as retention of possession without ownership under a right is generally considered a lien.
Of course, this does not work well in a digital world, where many distributors are wishing to avoid a transfer of ownership. However, to my mind, the mechanism used for the transfer is still largely irrelevant - the fact that you might buy some eggs from me, and I choose to deliver them to you myself, or else deliver them to DHL, which delivers them to you, or else I give them, does not affect the transfer of title; this passes from me to you, even though I use an intermediary to effect the transfer of possession.
When one looks at the GPL, for example, there is no right to sub-license; the owner of a particular copyright work within a GPL'd file licences that work directly to the recipient, even if there are many layers of transfer in between. No matter what transfer mechanism is used, the licence is still granted from the owner to the eventual recipient, directly.
SoGA requires a consideration - that needn't be cash, it could be in the form of a service or the transfer of some other goods or chattels
I think there is some confusion between the requirements of a contract (of which consideration, which need not be money, is one element), and contracts to which SoGA applies (sales for "money consideration"). To fall under SoGA, amongst other things, there must be "money consideration", and so a service, or transfer of other goods (e.g. bartering) is insufficient.
So, no, cash is not required, since cash is a specific form of money, but non-money consideration is insufficient.
(Again, IAAL, but, this is not legal advice!)
That should mean that patching for security etc, should be available for a reasonable period as a right.
Or that the product should be secure against vulnerabilities known to be prevalent at the time at which the software was sold. I would not read it as implying an ongoing duty to provide patches against unknown threats.
There might be more of a debate about threats which, whilst known at the time of sale, were purely theoretical, with no realistic prospect of being a real vulnerability, but which, some point after the sale, became exploitable in the real world. However, in this case, I'd expect a court to take a position of what is reasonable, and to consider that a possible, but, highly unlikely, threat, was not a defect, unless the product was sold as being "secure against all known threats", or the like.
Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I think that this would depend on exactly what you meant. Distribution of software alone (i.e. without embodiment in a physical object, be it a computer or a CD), may not meet the definition of a "good". Similarly, SoGA applies to "contracts of sale of goods"; in the case of open source software distribution, there are likely to be arguments as to whether:
However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.
This is, perhaps, a risky statement, given that a contractual remedy should put the detrimented party in the position as if the contract had been properly performed, unless the measure of damages for a claim in tort, for which the remedy is the preservation of the status quo (i.e. putting the detrimented party in the position as if the tortious act had never happened).
As such, the fact that the licensor has made very little from the software does not mean that the licensee could only receive very little in terms of compensation, unless the licensor has an enforceable limitation of liability clause - and, a judge may be more inclined to find that, where the product was distributed without charge, that such a limitation was reasonable. However, without a limitation of liability clause in the agreement, it might be harder to find grounds to limit recovery, where the loss suffered by the licensee, as a result of a contractual breach, was significant.
However, the presence of a bug, or the failure of a piece of software to perform in a particular manner, is not necessarily a contractual breach - it would depends on the terms of the contract.
Section 14 in the Sale of Goods act determines quality
However, s14 only applies to business-consumer contracts ("Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality."), and so one would need to assess whether the hobbyist distributing code a business - merely charging for an item does not make one a "business".
In other words, it depends; there are likely to be situations in which SoGA does apply to open source software (or, to my mind, a physical item embodying open source software, which might then give rise to claims against the software embodied in that product directly), but also many situations in which is does not.
(IAAL, who does a lot of work with Free software, but, these are just my personal views)
Although, in this case, despite being a business, the recipient / purchaser was treated as a consumer, given the one-sided nature of the negotiations in respect of the clause in question. (I.e. doing business on the other side's standard terms.)
Similarly, had there been sufficient opportuntiy for the purchaser to test the product, rather than relying on a demonstration by the vendor, the outcome may have been different; as, potentially, would have been the case in which the vendor had pointed out that the software had particular known problems / lack of support in certain areas.
as mentioned earlier, why should someone be accountable for the results of deliberate attacks? no other industry does that.
I'm less sure:
As a lawyer, I draft a contract for a client, to set out the relationship between him, and a third party. The relationship breaks down, and ends up in litigation. The third party looks for every possible weakness in the contract, anything which could be in their favour. The third party wins. I get sued for negligence, for drafting a contract which did not adequately protect my client.
"My" contract was being deliberately attacked, and failed to protect my client, but, I'd expect to be accountable for that.
I see your point, but think about what you're saying. So it would be OK for a submission to the Harvard Medical Journal to write "Our studies indicate that the treatment for this particular disease was successful :^)"
Yes - that's exactly what I am saying; if the emoticon represents a better (inherently subjective, of course) way of conveying emotion in prose, then, I am not against the idea simply because it might look out of place, when compared with today's standards.
Emoticons are simply forms of expressing a particular feeling or intensity, in the same way as an exclamation mark. Is the only difference that exclamation marks are considered acceptable, because they are, in some way, traditional?
Oops - I forgot to sign in before posting :)
I go the other way.
Your approach sounds almost identical to me!
a.) Standardise on plugs: you've pick US for size, whereas I use UK because it's all I've got b.) Bring a break-out / multi-way unit: you use a block, whereas I use a strip c.) Bring one converter: yours seems fancier than mine
Nor say that you hope to have a blast in London.
Bletchley Park - within striking distance of London - the war-time code breaking centre.
Science Musuem - I was actually disappointed last time I visited the telecommunications exhibit, but the computation and maths exhibits are fascinating.
Natural History Musem - even if just to see the huge dinosaur in the entrance hall, which amazes me every time.
Greenwich - depends on your geekiness, but, you might enjoy visiting the Prime Meridian, in the courtyard of the Royal Observatory
Perhaps the geekiness has got to me, but, I always travel with a computer - for me, currently, my netbook, simply for size and battery life reasons - it's not a huge weight if I don't use it, it's encrypted and everything important is backed-up on my server back at home in case I lose it / it gets stolen, and is great for whiling away time at airports, checking what's going on wherever I am, as well as just keeping up with my email - different strokes for different folks, but, I prefer to be in touch and accessible (but not necessarily to work colleagues) when I'm away.
I wouldn't think too much about it, though - just pick up a plug adapter. If you're going to be bringing lots of powered appliances / chargers, I tend to find the cheapest / easiest solution is to bring a multi-way extender, and one plug adapter, rather than lots of plug adapters (although this is a habit I started for business travel, I now pack this for personal travel too, especially when travelling with my girlfriend, since it just makes things easier for charging phones, iPods etc.).
Feel free to drop by one of the local LUGs, if you're a Linux user, or just fancy a geeky chat - SCLUG's my local, down in Reading (about 25 minutes on the train, from Paddington, London) - or just message me on here, since I enjoy meeting new people!
As a lawyer working in the area, I highly recommend Boyle's book, 'The Public Domain' - available under a Creative Commons licence, as well as in dead-tree format.
A fascinating (and easy to read) discussion about the concept of 'the public domain', which is well worth reading for anyone who cares about the future of technological development / societal impact of overbearing IP regulation etc.