Sony will ultimately do quite well with the PS3, as it is likely that Blu-ray will win the high-definition movie format war.
I agree that Sony will win the HD format war, but I don't believe that it will convey any real advantage to Sony. The uptake on HD formats has been incredibly slow. Even if Sony were to wipe out HD-DVD tomorrow, they would only inherit a very small piece of market share.
Most observers misunderstand what's going on with the Wii at present: that once a household purchases a Wii, it will never purchase another console. I completely disagree with this analysis.
In my view, the Wii is bringing in a wider demographic than has ever been exposed to games before, and a meaningful number of them will now consider purchasing a more "hardcore" system. Once the PS3 and the Xbox 360 price points decline to a competitive level -- the magic number is probably around $199, this wider demographic will be more likely to consider purchasing [one] as the second console in the home.
I have to disagree. If the PS2 proved anything, it's that very few gamers will support more than one console in their home. The hardcore types had a Gamecube (only $99!) as well, but that didn't stop the GCN from being the worst performing console that Nintendo ever released. (~22 million units worldwide) Microsoft didn't fare much better, just barely edging out the Wii's sales. (~24 million units worldwide)
All this adds up to a single, inescapable conclusion: The casual market is a zero sum game. There can only be one winner who takes the lion's share of the market pie.
Guitar Hero is perhaps the best example of a game that non-gamers can enjoy, but will still be popular with the enthusiast and core gamer. The Wii, the DS and the PS2 are changing the dynamics of the industry, with the mass market becoming a primary driver rather than an end-cycle afterthought.
This is what a lot of people keep missing. The PS2 continues to go strong because it appeals to the casual gaming crowd. It may have initially sold well because it was a cheap DVD player, but that offered the market a way to reach the casual gamer. (Whether it was understood at the time or not.) Those customers are extremely happy with their $120 DVD/Tetris/Guitar Hero machines, so why should they spend $600 for a PS3? The answer, of course, is that they're not going to. They may purchase a Wii, but it's only because it provides gaming possibilities that their existing machine doesn't. And they don't need to break the bank to get one.
Now we are back to the question of who made the copy when it gets downloaded. Is it the person who makes it available or the person who initiates the download?
Dude, you're going around in circles. The law in the United States is very clear on the matter of copying software. It doesn't track copies so much as it tracks the individual right or license. So stop trying to create a situation that doesn't exist.
If you're referring to the laws of other countries, then they don't apply to this discussion. Both Novell and Microsoft are US companies. It it possible that other countries would be more strict about the implementation of the GPL, but I find it unlikely. Most other countries have far more lax laws than the US.
The GPL clearly grants the right to 1) copy, 2) modify and 3) distribute. You can't modify or copy without the GPL, and most users need one or the other in one or more jurisdictions in one or more situations.
This was already answered in a clear and succinct manner. Please revisit earlier posts in this thread.
We agree you need the GPL to distribute, but you also need it for the other two cases.
No, you don't. Both US Copyright law and the GPL agree with me. Please revisit the earlier posts in this thread for a complete explanation as to why.
You may call it a "pox," but others will call it a blessing.
I don't disagree at all. My point was that GPLed code can become a pox if one is not careful. My point was NOT that it is always a pox. GPLed code is useful in many situations.
I own a legal copy of GPL'd software that I run on my desktop. I want to make another copy for my laptop. Don't you agree that you need permission from the copyright owner to make the second copy of the copyrighted software?
That is correct, though easily circumvented. If you download another copy for your laptop rather than making a copy from the desktop, then the GPL would not kick in.
However, your specific concern was over the rights to the initial copy. As I said, that copy is legal and encumbered only by copyright law unless you wish to redistribute.
I know it's fashionable to claim that the GPL only adds rights and never takes them away, but that's just a self-delusion.
It is not a delusion, it is simply the way the legal document works. Without the GPL you cannot redistribute. With the GPL you can. Nothing else grants you rights of redistribution.
Also, you seem to be of the opinion that I am a great fan of the GPL. While I've developed a healthy respect for it and the logic used to power it, I still feel that it places unnecessary burdens on software authors. I'm much more trusting of your average human being, and would rather see community-developed software under a license like BSD or public domain. However, the GPL still has its uses.
The GPL controls rights.
It only controls the rights it grants you. It would be a mistake to think that the GPL grants you a free hand in redistribution. Where one can easily fall afoul of the GPL is if you mix your own software with GPL software. That makes it a pox upon your code rather than a benefit. So one does need to be careful before basing their software upon GPLed code.
I don't disagree with anything you posted, except that you start from the assumption that the user has a legal copy of a copyrighted program, while I start from the point before he has such a copy
A fair enough argument, but ultimately flawed. If you offered your own software for download with no further licensing restrictions, it would be perfectly legal for someone to come along and download a copy. They can only keep that copy (and backups/operational copies) and cannot give it to anyone else unless they transfer all copies. (Per first-sale doctrine.)
The GPL is predicated on the idea that click-wrap licenses may not be legal in your state/country, and that it should only be adding rights rather than taking them away. To that end, the GPL is designed not to kick in when you download a copy of GPLed software. It's only once you provide the software to someone else that the GPL takes effect. Without agreeing to the GPL, you would violate copyright law in distributing the software. Thus you must agree to the terms of the license in order to redistribute the software. These are the "additional" rights that the GPL provides.
So what you're saying is that implied contracts don't exist, and that every law book in print and every law website should remove all references to these contracts because an anonymous coward on Slashdot says that such a contract does not exist?
If copying isn't copyright controlled, you don't need any license to install.
CORRECT! The EULA is a set of terms and conditions imposed as part of the sale. This is a practice that's been found legal in many cases. See Klocek v. Gateway, Inc. for an example. If Microsoft did not include a EULA than they would be on the hook for quite a few legal issues. For example, Microsoft would be held liable for a warranty of fitness under the law of many states. For another example, Microsoft would be unable to prevent the resale of OEM software. (Again, that pesky First-sale doctrine)
And it is ONLY under the idea that you DO need a license for such a copy that an EULA can be considered required and legal.
Then why can my toaster come with additional terms and conditions when I purchase it? Does a toaster require a license to own and operate?
They can at whim say "no". They offered. An offer is not considered binding. If I offer you an apple for free, until you take that apple from me, I can say "but not you". I have made no agreement to offer you an apple.
Tell that to Carlill v. Carbolic Smoke Ball Company, an influential case in both UK and US law. That case made it clear that a unilateral offer can be binding. Modern law thus tends to consider whether or not a specific situation constitutes an offer or not. For example, placing a sign above apples that says, "Free, take one!" would constitute a binding offer. However, the "joke" of earning a harrier jumpjet in the Leonard v. Pepsico, Inc. case was not found to be a reasonable form of a unilateral offer.
From the GPL: "we offer you this license, which gives you legal permission to copy, distribute and/or modify the library."
I think that makes the situation fairly clear on that point.
Even after you've taken the apple, I could attempt to say "I've changed my mind" and the law would consider whether that was fair but would NOT consider it a breech of contract case.
Incorrect. If you made the offer to me, then the offer is binding. It's up to me to decide whether I will return the apple or not. If you had a sign that said, "Visit our store, we are giving out free apples", then the contract has not yet been intiated. You can refuse service to me. However, most places still attempt to protect themselves with a sign that says, "We reserve the right to refuse service to any customer for any reason."
You seem to want to believe that license=contract. So is contract=license?
A Porche is a car. Is a car a Porche? Bad logic.
When you buy a bar license, is it actually a bar contract?
If you want to be specific, a license is the terms of a contract that provide you with the "promise not to be sued". Licenses can be revoked, but from what I know, only if it's built into the terms and conditions of the license. (i.e. the contract) The GPL, for example, cannot be revoked regardless of the owner's wishes. The only way it can be revoked is if you fall afoul of the conditions the license imposes. This is a bit different than most licenses which carry the term, "This license may be revoked for any reason."
You can read the fine print of the American Bar Association here.
When you abridge your license, your license IS TAKEN AWAY. Why is that? BECAUSE THEY ARE NOT CONTRACTS.
Funny thing is that a contract can become null and void in the case that the contract is breeched. If I pay you $5 for a cheeseburger, you are required to return the funds if you fail to deliver the cheeseburger. In a more extreme case, failure to pay a mortgage results in the house "defaulting" to the bank. These are very similar situations to a license where the "promise not to sue" can be revoked if you fail to uphold the terms and conditions of a license. Thus it makes perfect sense that a license is really a contract. Or at least a specific type of provision in a contract.
How the fuck did you manage a karma bonus?
Well, for one I cite sources rather than positing arguable thought-experiments. The practice of law is heavily based on being able to cite existing decisions and laws. It is relatively rare that a judge is asked to create a new interpretation without having any previous references. So if you want to provide a thought-experiment, try backing it up with a reference. If you are working toward going into law, then the practice would serve you well.
When you download a program onto your hard drive, you make a copy. When you load it into RAM, you make a copy.
The law doesn't agree that these copies constitue infringement. From Section 117 of US Code:
(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
This was tested in Vault Corp. v. Quaid Software, Ltd., where the judge explicitly upheld the right to load computer software into memory in order to use it. MAI Systems Corp. v. Peak Computer, Inc. would later create an exception to this if you loaded the software into the memory of someone else's computer, but that is irrelevant to the situation at hand and actually supports my point. (Copyright law was also amended in 1998 to allow for Peak's maintenance usage to be legal.)
Futhermore, the GPL states:
The act of running a program using the Library is not restricted, and output from such a program is covered only if its contents constitute a work based on the Library (independent of the use of the Library in a tool for writing it).
Another point to keep in mind is that the GPL is very specific in its language. Whenever it talks about copying, it uses the phrase "copy and distribute". It is thus understood that these actions are expected to happen together. Distributing a copy you already have is an invocation of the first-sale doctrine and is a well known "loop hole" in the GPL. (Not really a loop hole, mind you, as it's not really exploitable. You have to destroy your own copies when transferring the ownership. This is per US Copyright law Section 117 Paragraph (b).)
The distributor made or otherwise obtained copies that he's providing you. This is what's known as the "first sale".
No, the "first sale doctrine" means that a copyright owner can't control the resale of a copyrighted work.
Don't confuse the first sale with the first sale doctrine. The first sale is when a specific instance of an item is sold. First sale doctrine is a legal construct that says that rights cannot be further restricted past the first sale. The effects of First sale doctrine are codified for software distribution in Section 117 Paragraph (b) in such a way as to make the tracking of the license more important than the tracking of the individual copies. According to that law, I am distributing the software if I give you a copy and keep my own copy. If I give you a copy and destroy my own copy, however, I am transferring my rights obtained under first-sale to you.
Without the GPL you can't make a copy (right 1) you can't make changes (right 2) and you can't distribute (right 3).
Without the GPL, you can perform #1 under certain circumstances of copyright law. (As discussed above.) You can probably do #2 without invoking the terms of the GPL, simply because the copy is your personal property. (See: http://www.gnu.org/licenses/gpl-faq.html#InternalD istribution for an example situation.) #3 is meat of the GPL and the core of its legal capabilities. That's why Section 5 of the GPL explicitly states:
The three solder points could EASILY be replaced with an edge connector that would interface with an edge connector on the battery
Putting aside for a moment that the edge connecters I've seen are too small to fit in the space provided, what would hold it in contact with the battery at all times? The battery is not secured, so the possibility exists that it could come loose. And since the iPhone is a sealed unit (more or less) you'd need professional repair every time it was loosened.
To prevent that issue, you would need a battery compartment. A battery compartment takes up space and adds expense and complexity to the manufacture. (Not to mention additional heat issues that are not as pressing with a loose battery.) Without a compartment to secure the battery, you get a few more millimeters of battery space here and there. Which can potentially add anywhere from minutes to hours to the battery's life.
I think it's important to understand that Canadian and US law are different systems and tend to disagree on a few points. This is one of them. Under US law the person who makes a file available on a P2P network is considered a distributor. If they don't have the rights to do so, then they could be sued by the copyright holder. Of course, US law also makes it illegal for a friend to copy a CD. So US law is fairly consistent on that point.
It's an interesting question as to whether or not Canadian law sees any software downloads as distribution or not. If not, then it seems to me that anyone could offer their legal copy of a piece of software for download on a web server. No need to even resort to a P2P program.
I should probably add to my post since I keep forgetting that PJ herself keeps pushing this "license" vs. "contract" nonsense. Contracts are all about agreements. It does not matter if a contract takes away rights or adds them, it is still a contract. PJ herself adds the following:
Of course, the law isn't that easy. The book Contracts, by John D. Calamari and Joseph M. Perillo, 3d Edition, begins with this first sentence: "No entirely satisfactory definition of the term 'contract' has ever been devised." It then goes on for almost a thousand pages, trying to do so.
She then argues that "license is a type of contract" is a valid, but not (in her opinion) relevant to the issue:
So while acknowledging that the word 'contract' can be used loosely in various contexts to mean different things, here we are looking at the heart of the matter, not the "on-the-other-hand" footnotes that result from common law. In the broadest sense, you might even hear someone say a license is a form of contract, but that's in the footnote category, not the essence of the discussion.
Which, in all reality, has no impact on the discussion at hand. Even if you believe a license to be separate from a contract, I fail to see how it has any bearing on the issue at hand. PJ is still asking a judge to rule that an agreement between Party A and Party B has a binding effect on a completely different agreement between Party C. I simply have never heard of any such case law. While I'm not a lawyer (and neither is PJ, mind you; though she is slightly more qualified than I;)), from what I do know of the law, it generally holds an individual party responsible for its own deals.
I'd love to see caselaw that suggests otherwise, but until I see such documents I feel that PJ is on very shaky ground. It's one thing to tear apart the nonsense spewed by the likes of SCO. It's a whole other thing for a paralegal to go toe to toe with a legal team like Microsoft's. Especially on a rather extreme legal theory.
If I download a program, the person I got from distributed it. I copied it.
No, that's not correct. The distributor made a copy and gave it to you. This is comparable to purchasing a book or CD. You don't "copy" the book or CD when you acquire it. The distributor made or otherwise obtained copies that he's providing you. This is what's known as the "first sale".
The GPL only kicks in when you make a non-backup copy of the copy you received. (Standard copyright law makes it legal for you to make backup copies.)
This is actually how the GPL is designed. You receive a copy from someone who has the rights to distribute the software. It could be the author, or a GPL licensee. You now are completely free to use the software as you choose with no restrictions save for those placed upon you by copyright law. Copyright law says that you can't make a copy and give it to a friend because only the owner of the software has the "right" to "copy". However, the owner can delegate that right per his or her choosing.
The GPL provides a unilateral offer to become a distributor. Since copyright law does not allow you to redistribute software you have received (save for the "first sale doctrine" exception) it is assumed that you accept the GPL offer when you redistribute. However! You can claim that you never accepted the GPL. If you do so, then you are in violation of copyright law and may owe damages to the copyright holder of the software.
If they decide to distribute what they have done, that is when the restrictions under the GPL kick in, not one minute before. At that point, the restrictions are precisely these...
If I go to a restaurant and order a cheeseburger, I have initiated an implied contract. The contract is that I will pay $X in exchange for a cheeseburger cooked to my specifications. If the restaurant delivers the cheeseburger, I have to pay. If, however, the restaurant delivers a chicken sandwich by accident, I am under no obligation to accept and pay for that chicken sandwich. Similarly, if my cheeseburger is cooked medium rare rather than the well-done I requested, I am under no obligation to accept delivery of or pay for the cheeseburger.
Now, as long as both sides hold up their end of the bargain (I pay, restaurant gives me cheeseburger as requested) everyone is happy and no one has lost anything. Thus a contract has been executed without taking away any rights.
This is contract law 101. I am not a lawyer, and even I know that. Don't argue the difference between a license and a contract unless you know what a contract is in the first place.
No, the owner of the copyright controlled by the GPL has agreed to NOTHING. Need not agree to anything. Ever. At all.
Oh, really? So they haven't agreed to allow you to redistribute the code under the terms of the GPL? If the owner of the copyright hasn't agreed to that stipulation, then how do you figure that any GPL code is properly licensed? After all, the owner could take you to court and say, "I never agreed to allow redistribution under the GPL!"
I'll tell you what - I'll give you back one or two of those millimeters you're so impressed with, if you'll give me a consumer-replaceable battery. Deal?
If the battery is a deal-breaker for you, then you're probably not Apple's target market. Since the advent of the iPod, Apple has not marketed a single device with a user-replaceable battery. Why this move by Apple comes as a shock to anyone is beyond me. Apple is more concerned with the style, size, and battery life of the device than they are about the battery being user-replaceable.
it doesn't change the fact that with regard to battery management the iPhone doesn't "just work" for the consumer.
You mean, other than the fact that the battery will probably last at least as long as the standard lifetime of the phone?
Everyone who has bought a cell phone in the last decade has learned of the need and value of being able to quickly replace the battery in their phone.
I'm not quite sure what you mean by that. I've had... lemme see here... 7 different cell phones if you include my wife's phones. I tend to get about 3-5 years out of each handset. My first handset was reliable until the carrier went out of business. (!) The second handset is still living as a used phone somewhere in the world. The third handset did have its battery die after about 4 years of use, but the model was so old at that point that replacement batteries were on back order. (Never did get that order fullfilled.:-/) Combined with a severely weakened case (the plastic got softer with time) and various scratches and other defects, I decided to upgrade and get my wife a phone as well.
Those two phones lasted about 4 years and are actually still going strong. We replaced them with Razrs because my wife managed to damage the power button on top of her unit. We recently had to get her Razr exchanged because of a burnout somewhere in the keyboard. While we were waiting for the new unit, I was able to pull out my old phone and pop her simcard in it. Not only was it working perfectly, but the battery still had a charge when I pulled it out of its box. (It was last charged over a year ago!) My wife joked that she didn't actually need a new phone because she had my old phone.
The batteries on our Razrs have never been a problem, and I doubt that they will be in the future.
So what have I as a consumer learned about batteries in phones? That they'll probably outlast the phone anyway, so there's no real need to worry about them.
If they don't distribute, they're not bound by the license.
You:
This is not accurate. You can't copy it without a license.
Would you like to explain the difference between "copying" and "distribution"? Last I checked, distribution of software involved "copying". Ergo, you're saying the exact same thing I just said.:-/
You can't modify it (make a "derivative work") without a license
This is correct. However, Microsoft is not in direct possession of the GPLed code in this situation, so the modification clause is irrelevant. And even then, it's questionable if the GPL would activate if you did not share the code with anyone. Standard property and copyright laws allow an owner wide latitude over his personal property. Since you did not accept the GPL when a copy was issued to you (see section 5 of the GPLv2) it's reasonable that you could modify the code without accepting the license. Realistically, the GPL is a no-op if you don't distribute (it really only imposes terms on distribution), so it doesn't matter one way or another.
You've got to have space for the wires and a secondary capture mechanism
The wires are laid horizontally, and can weave through a space above and to the side of the mainboard too small to solder a proper battery interface onto. I'm not sure what you mean by a secondary capture mechanism. The battery appears to be loose and is held in place by the casing and components surrounding it. Thus Apple saved a lot of space on having no battery compartment, allowing them to use a larger battery. (Looking at the disassembly photos, I'd guess that the battery is taking up as much as 50% of the iPhone's internal spaces.)
Also, for a license to be binding between two parties, don't the 2 parties have to have agreed to it?
1. It's not stupid if there's a good reason for it.
2. A standard Razr has a thickness of about 16mm and it doesn't have even half the features or power requirements of the iPhone. The iPhone is only 11.5mm thick and is capable of 10 days of standby time, 24 hours of music playback, 8 hours of talk time, 7 hours of video playback, or 6 hours of web browsing. That's amazingly good for a phone that's only 72% of the thickness of a Razr. The only phone with a somewhat comparable size and feature set is the Slvr, which has terrible battery life.
In short, Apple is fitting that extra battery space in the phone by using simple soldered wires rather than wasting space on a proper battery compartment. Seeing as how the battery is connected by just a couple of wires (it's not like it's surface mounted or anything!) it's quite easy for a professional to replace. So maybe Apple isn't quite as "stupid" as you're making them out to be?
Also, for a license to be binding between two parties, don't the 2 parties have to have agreed to it?
Yes sir. The GPL is a unilateral contract offer that one side has already agreed to. Thus it goes into effect as soon as the other side agrees. Since Microsoft has not explicitly agreed to the license (or explicitly distributed GPLed code, thus signifying acceptance or violation of copyright law) then Microsoft is not bound. That's my interpretation anyway. Providing a credit offer to pay for someone else's services does not, in any legal theory I've ever heard, bind you to the terms of the transaction between the buyer and the seller. You may accept certain legal responsibilities in that case (generally only as far as assuring that your offer was completed to the full written and intended terms of the contract between you and the buyer), but you have no real relation to the seller.
What in the world are you yammering on about? License is a type of contract that one party offers to another. The consideration of the contract is that the first party is usually compensated in some fashion while the second party receives rights that the first party controls. That's a contract. Yammering on about the meaning of license is beside the point. It's still rooted in contract law.
License for a dog, you can't keep domesticated animals. a license says you can.
Correct. I enter into an agreement with the local government that in exchange for keeping an animal I will register that animal with the government so that the government may track all domestic animals within their jurisdiction. Without the license, local laws usually prohibit the keeping of animals. Thus the need for a contractual relationship between you and the local government.
The GPL allows something that no ammount of retail purchase is supposed to give you: the ability to sell derived works or become a retailler yourself.
Yeah, see, that's a contract. A unilateral offer to provide copying and modification rights in exchange for terms that prevent you from making modifications public without sharing the source code for them. That is a contract.
I'll say it again, a license is simply a form of contract. It's not that hard to figure out.
A license is a form of contract and lays its foundations on contract law. Which means that all the standard issues (e.g. consideration, acceptance, etc.) still apply. While consideration is usually built-in by the fact that the license provides you with rights to use something you wouldn't otherwise have, other standard contract issues still apply.
Also, the coupons had no expiry date and were for SLES updates, so it very well should apply to them since FSF, MS, and Novell are ALL parties to this agreement.
You are confused. Microsoft provided vouchers for someone else's service. Microsoft's agreement only goes as far as paying for those products on your behalf. The licensing of those products is irrelevant as Microsoft is not distributing them. They are only providing a credit toward purchases.
It's a bit like saying that because I won a car on Wheel of Fortune, CBS is now responsible for the warranty. Which is nonsense, the manufacturer is still responsible for the warranty.
What, did you sign anything to get MS's special non-commercial "hobbyist" patent covenant, or MS's special "customer of Novell" patent license? No!
That doesn't even make sense. You purchase products from Novell, and Microsoft foots the bill. You and you alone are responsible for the license agreement between you and Novell unless the use of the Microsoft vouchers contained contract terms that implicitly made Microsoft a party to the agreement. And I can't think of any reason why Microsoft would do that.
You do realize that the "GPLv2 or later" clause is a choice that is made by the redistributor at the time of distribution, right? So Microsoft could *choose* to distribute under GPLv2 or v3. If they don't distribute, they're not bound by the license.
Here's the complete section in question (emphasis added):
This library is free software; you can redistribute it and/or modify it under the terms of the GNU Lesser General Public License as published by the Free Software Foundation; either version 2.1 of the License, or (at your option) any later version.
Truth be told, I'm not really following PJ on this one. I know of no legal theory that would cause a license to reach out from a second party and latch onto a third party just because the second and third parties have an agreement. In the case of a contract that binds partners, the responsibility usually falls upon the second party to execute a compatible agreement with the third. Failure to do so would place the second party at fault. i.e. Novell could get in trouble, but Microsoft would be shielded by only having a non-GPL agreement with Novell, not directly with the Linux developers.
Now a judge might not be happy with the legal games that Microsoft is playing (can you say 'extortion'?), but I can't see him binding Microsoft to a contract they didn't directly accept.
What do you think the $10 a month is for? T-Mobile is basically signing you up for a subscription to their WiFi service. Which is probably cheaper to run than the cell service. So T-Mobile gets you to sign up for cell service AND WiFi, then gets you to use less of the expensive GSM airtime and more of the inexpensive WiFi time. Voila, T-Mobile profits.
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I agree that Sony will win the HD format war, but I don't believe that it will convey any real advantage to Sony. The uptake on HD formats has been incredibly slow. Even if Sony were to wipe out HD-DVD tomorrow, they would only inherit a very small piece of market share.
I have to disagree. If the PS2 proved anything, it's that very few gamers will support more than one console in their home. The hardcore types had a Gamecube (only $99!) as well, but that didn't stop the GCN from being the worst performing console that Nintendo ever released. (~22 million units worldwide) Microsoft didn't fare much better, just barely edging out the Wii's sales. (~24 million units worldwide)
All this adds up to a single, inescapable conclusion: The casual market is a zero sum game. There can only be one winner who takes the lion's share of the market pie.
This is what a lot of people keep missing. The PS2 continues to go strong because it appeals to the casual gaming crowd. It may have initially sold well because it was a cheap DVD player, but that offered the market a way to reach the casual gamer. (Whether it was understood at the time or not.) Those customers are extremely happy with their $120 DVD/Tetris/Guitar Hero machines, so why should they spend $600 for a PS3? The answer, of course, is that they're not going to. They may purchase a Wii, but it's only because it provides gaming possibilities that their existing machine doesn't. And they don't need to break the bank to get one.
Dude, you're going around in circles. The law in the United States is very clear on the matter of copying software. It doesn't track copies so much as it tracks the individual right or license. So stop trying to create a situation that doesn't exist.
If you're referring to the laws of other countries, then they don't apply to this discussion. Both Novell and Microsoft are US companies. It it possible that other countries would be more strict about the implementation of the GPL, but I find it unlikely. Most other countries have far more lax laws than the US.
This was already answered in a clear and succinct manner. Please revisit earlier posts in this thread.
No, you don't. Both US Copyright law and the GPL agree with me. Please revisit the earlier posts in this thread for a complete explanation as to why.
I don't disagree at all. My point was that GPLed code can become a pox if one is not careful. My point was NOT that it is always a pox. GPLed code is useful in many situations.
That is correct, though easily circumvented. If you download another copy for your laptop rather than making a copy from the desktop, then the GPL would not kick in.
However, your specific concern was over the rights to the initial copy. As I said, that copy is legal and encumbered only by copyright law unless you wish to redistribute.
It is not a delusion, it is simply the way the legal document works. Without the GPL you cannot redistribute. With the GPL you can. Nothing else grants you rights of redistribution.
Also, you seem to be of the opinion that I am a great fan of the GPL. While I've developed a healthy respect for it and the logic used to power it, I still feel that it places unnecessary burdens on software authors. I'm much more trusting of your average human being, and would rather see community-developed software under a license like BSD or public domain. However, the GPL still has its uses.
It only controls the rights it grants you. It would be a mistake to think that the GPL grants you a free hand in redistribution. Where one can easily fall afoul of the GPL is if you mix your own software with GPL software. That makes it a pox upon your code rather than a benefit. So one does need to be careful before basing their software upon GPLed code.
A fair enough argument, but ultimately flawed. If you offered your own software for download with no further licensing restrictions, it would be perfectly legal for someone to come along and download a copy. They can only keep that copy (and backups/operational copies) and cannot give it to anyone else unless they transfer all copies. (Per first-sale doctrine.)
The GPL is predicated on the idea that click-wrap licenses may not be legal in your state/country, and that it should only be adding rights rather than taking them away. To that end, the GPL is designed not to kick in when you download a copy of GPLed software. It's only once you provide the software to someone else that the GPL takes effect. Without agreeing to the GPL, you would violate copyright law in distributing the software. Thus you must agree to the terms of the license in order to redistribute the software. These are the "additional" rights that the GPL provides.
So what you're saying is that implied contracts don't exist, and that every law book in print and every law website should remove all references to these contracts because an anonymous coward on Slashdot says that such a contract does not exist?
To quote the infamous Paula Bean: "Brillant"
CORRECT! The EULA is a set of terms and conditions imposed as part of the sale. This is a practice that's been found legal in many cases. See Klocek v. Gateway, Inc. for an example. If Microsoft did not include a EULA than they would be on the hook for quite a few legal issues. For example, Microsoft would be held liable for a warranty of fitness under the law of many states. For another example, Microsoft would be unable to prevent the resale of OEM software. (Again, that pesky First-sale doctrine)
Then why can my toaster come with additional terms and conditions when I purchase it? Does a toaster require a license to own and operate?
Sorry, insert the word "Handheld" in front of device there. I wasn't referencing their computer line, which is a completely different ball of wax.
Tell that to Carlill v. Carbolic Smoke Ball Company, an influential case in both UK and US law. That case made it clear that a unilateral offer can be binding. Modern law thus tends to consider whether or not a specific situation constitutes an offer or not. For example, placing a sign above apples that says, "Free, take one!" would constitute a binding offer. However, the "joke" of earning a harrier jumpjet in the Leonard v. Pepsico, Inc. case was not found to be a reasonable form of a unilateral offer.
From the GPL: "we offer you this license, which gives you legal permission to copy, distribute and/or modify the library."
I think that makes the situation fairly clear on that point.
Incorrect. If you made the offer to me, then the offer is binding. It's up to me to decide whether I will return the apple or not. If you had a sign that said, "Visit our store, we are giving out free apples", then the contract has not yet been intiated. You can refuse service to me. However, most places still attempt to protect themselves with a sign that says, "We reserve the right to refuse service to any customer for any reason."
A Porche is a car. Is a car a Porche? Bad logic.
If you want to be specific, a license is the terms of a contract that provide you with the "promise not to be sued". Licenses can be revoked, but from what I know, only if it's built into the terms and conditions of the license. (i.e. the contract) The GPL, for example, cannot be revoked regardless of the owner's wishes. The only way it can be revoked is if you fall afoul of the conditions the license imposes. This is a bit different than most licenses which carry the term, "This license may be revoked for any reason."
You can read the fine print of the American Bar Association here.
Funny thing is that a contract can become null and void in the case that the contract is breeched. If I pay you $5 for a cheeseburger, you are required to return the funds if you fail to deliver the cheeseburger. In a more extreme case, failure to pay a mortgage results in the house "defaulting" to the bank. These are very similar situations to a license where the "promise not to sue" can be revoked if you fail to uphold the terms and conditions of a license. Thus it makes perfect sense that a license is really a contract. Or at least a specific type of provision in a contract.
Well, for one I cite sources rather than positing arguable thought-experiments. The practice of law is heavily based on being able to cite existing decisions and laws. It is relatively rare that a judge is asked to create a new interpretation without having any previous references. So if you want to provide a thought-experiment, try backing it up with a reference. If you are working toward going into law, then the practice would serve you well.
The law doesn't agree that these copies constitue infringement. From Section 117 of US Code:
This was tested in Vault Corp. v. Quaid Software, Ltd., where the judge explicitly upheld the right to load computer software into memory in order to use it. MAI Systems Corp. v. Peak Computer, Inc. would later create an exception to this if you loaded the software into the memory of someone else's computer, but that is irrelevant to the situation at hand and actually supports my point. (Copyright law was also amended in 1998 to allow for Peak's maintenance usage to be legal.)
Futhermore, the GPL states:
Another point to keep in mind is that the GPL is very specific in its language. Whenever it talks about copying, it uses the phrase "copy and distribute". It is thus understood that these actions are expected to happen together. Distributing a copy you already have is an invocation of the first-sale doctrine and is a well known "loop hole" in the GPL. (Not really a loop hole, mind you, as it's not really exploitable. You have to destroy your own copies when transferring the ownership. This is per US Copyright law Section 117 Paragraph (b).)
Don't confuse the first sale with the first sale doctrine. The first sale is when a specific instance of an item is sold. First sale doctrine is a legal construct that says that rights cannot be further restricted past the first sale. The effects of First sale doctrine are codified for software distribution in Section 117 Paragraph (b) in such a way as to make the tracking of the license more important than the tracking of the individual copies. According to that law, I am distributing the software if I give you a copy and keep my own copy. If I give you a copy and destroy my own copy, however, I am transferring my rights obtained under first-sale to you.
Without the GPL, you can perform #1 under certain circumstances of copyright law. (As discussed above.) You can probably do #2 without invoking the terms of the GPL, simply because the copy is your personal property. (See: http://www.gnu.org/licenses/gpl-faq.html#InternalD istribution for an example situation.) #3 is meat of the GPL and the core of its legal capabilities. That's why Section 5 of the GPL explicitly states:
Putting aside for a moment that the edge connecters I've seen are too small to fit in the space provided, what would hold it in contact with the battery at all times? The battery is not secured, so the possibility exists that it could come loose. And since the iPhone is a sealed unit (more or less) you'd need professional repair every time it was loosened.
To prevent that issue, you would need a battery compartment. A battery compartment takes up space and adds expense and complexity to the manufacture. (Not to mention additional heat issues that are not as pressing with a loose battery.) Without a compartment to secure the battery, you get a few more millimeters of battery space here and there. Which can potentially add anywhere from minutes to hours to the battery's life.
I think it's important to understand that Canadian and US law are different systems and tend to disagree on a few points. This is one of them. Under US law the person who makes a file available on a P2P network is considered a distributor. If they don't have the rights to do so, then they could be sued by the copyright holder. Of course, US law also makes it illegal for a friend to copy a CD. So US law is fairly consistent on that point.
It's an interesting question as to whether or not Canadian law sees any software downloads as distribution or not. If not, then it seems to me that anyone could offer their legal copy of a piece of software for download on a web server. No need to even resort to a P2P program.
She then argues that "license is a type of contract" is a valid, but not (in her opinion) relevant to the issue:
Which, in all reality, has no impact on the discussion at hand. Even if you believe a license to be separate from a contract, I fail to see how it has any bearing on the issue at hand. PJ is still asking a judge to rule that an agreement between Party A and Party B has a binding effect on a completely different agreement between Party C. I simply have never heard of any such case law. While I'm not a lawyer (and neither is PJ, mind you; though she is slightly more qualified than I
I'd love to see caselaw that suggests otherwise, but until I see such documents I feel that PJ is on very shaky ground. It's one thing to tear apart the nonsense spewed by the likes of SCO. It's a whole other thing for a paralegal to go toe to toe with a legal team like Microsoft's. Especially on a rather extreme legal theory.
No, that's not correct. The distributor made a copy and gave it to you. This is comparable to purchasing a book or CD. You don't "copy" the book or CD when you acquire it. The distributor made or otherwise obtained copies that he's providing you. This is what's known as the "first sale".
The GPL only kicks in when you make a non-backup copy of the copy you received. (Standard copyright law makes it legal for you to make backup copies.)
This is actually how the GPL is designed. You receive a copy from someone who has the rights to distribute the software. It could be the author, or a GPL licensee. You now are completely free to use the software as you choose with no restrictions save for those placed upon you by copyright law. Copyright law says that you can't make a copy and give it to a friend because only the owner of the software has the "right" to "copy". However, the owner can delegate that right per his or her choosing.
The GPL provides a unilateral offer to become a distributor. Since copyright law does not allow you to redistribute software you have received (save for the "first sale doctrine" exception) it is assumed that you accept the GPL offer when you redistribute. However! You can claim that you never accepted the GPL. If you do so, then you are in violation of copyright law and may owe damages to the copyright holder of the software.
PJ echos this point in this article:
You really don't get this, do you?
If I go to a restaurant and order a cheeseburger, I have initiated an implied contract. The contract is that I will pay $X in exchange for a cheeseburger cooked to my specifications. If the restaurant delivers the cheeseburger, I have to pay. If, however, the restaurant delivers a chicken sandwich by accident, I am under no obligation to accept and pay for that chicken sandwich. Similarly, if my cheeseburger is cooked medium rare rather than the well-done I requested, I am under no obligation to accept delivery of or pay for the cheeseburger.
Now, as long as both sides hold up their end of the bargain (I pay, restaurant gives me cheeseburger as requested) everyone is happy and no one has lost anything. Thus a contract has been executed without taking away any rights.
This is contract law 101. I am not a lawyer, and even I know that. Don't argue the difference between a license and a contract unless you know what a contract is in the first place.
Oh, really? So they haven't agreed to allow you to redistribute the code under the terms of the GPL? If the owner of the copyright hasn't agreed to that stipulation, then how do you figure that any GPL code is properly licensed? After all, the owner could take you to court and say, "I never agreed to allow redistribution under the GPL!"
Your insightfulness amazes me.
Sure.
If the battery is a deal-breaker for you, then you're probably not Apple's target market. Since the advent of the iPod, Apple has not marketed a single device with a user-replaceable battery. Why this move by Apple comes as a shock to anyone is beyond me. Apple is more concerned with the style, size, and battery life of the device than they are about the battery being user-replaceable.
You mean, other than the fact that the battery will probably last at least as long as the standard lifetime of the phone?
I'm not quite sure what you mean by that. I've had... lemme see here... 7 different cell phones if you include my wife's phones. I tend to get about 3-5 years out of each handset. My first handset was reliable until the carrier went out of business. (!) The second handset is still living as a used phone somewhere in the world. The third handset did have its battery die after about 4 years of use, but the model was so old at that point that replacement batteries were on back order. (Never did get that order fullfilled.
Those two phones lasted about 4 years and are actually still going strong. We replaced them with Razrs because my wife managed to damage the power button on top of her unit. We recently had to get her Razr exchanged because of a burnout somewhere in the keyboard. While we were waiting for the new unit, I was able to pull out my old phone and pop her simcard in it. Not only was it working perfectly, but the battery still had a charge when I pulled it out of its box. (It was last charged over a year ago!) My wife joked that she didn't actually need a new phone because she had my old phone.
The batteries on our Razrs have never been a problem, and I doubt that they will be in the future.
So what have I as a consumer learned about batteries in phones? That they'll probably outlast the phone anyway, so there's no real need to worry about them.
You:
Would you like to explain the difference between "copying" and "distribution"? Last I checked, distribution of software involved "copying". Ergo, you're saying the exact same thing I just said.
This is correct. However, Microsoft is not in direct possession of the GPLed code in this situation, so the modification clause is irrelevant. And even then, it's questionable if the GPL would activate if you did not share the code with anyone. Standard property and copyright laws allow an owner wide latitude over his personal property. Since you did not accept the GPL when a copy was issued to you (see section 5 of the GPLv2) it's reasonable that you could modify the code without accepting the license. Realistically, the GPL is a no-op if you don't distribute (it really only imposes terms on distribution), so it doesn't matter one way or another.
The wires are laid horizontally, and can weave through a space above and to the side of the mainboard too small to solder a proper battery interface onto. I'm not sure what you mean by a secondary capture mechanism. The battery appears to be loose and is held in place by the casing and components surrounding it. Thus Apple saved a lot of space on having no battery compartment, allowing them to use a larger battery. (Looking at the disassembly photos, I'd guess that the battery is taking up as much as 50% of the iPhone's internal spaces.)
1. It's not stupid if there's a good reason for it.
2. A standard Razr has a thickness of about 16mm and it doesn't have even half the features or power requirements of the iPhone. The iPhone is only 11.5mm thick and is capable of 10 days of standby time, 24 hours of music playback, 8 hours of talk time, 7 hours of video playback, or 6 hours of web browsing. That's amazingly good for a phone that's only 72% of the thickness of a Razr. The only phone with a somewhat comparable size and feature set is the Slvr, which has terrible battery life.
In short, Apple is fitting that extra battery space in the phone by using simple soldered wires rather than wasting space on a proper battery compartment. Seeing as how the battery is connected by just a couple of wires (it's not like it's surface mounted or anything!) it's quite easy for a professional to replace. So maybe Apple isn't quite as "stupid" as you're making them out to be?
Yes sir. The GPL is a unilateral contract offer that one side has already agreed to. Thus it goes into effect as soon as the other side agrees. Since Microsoft has not explicitly agreed to the license (or explicitly distributed GPLed code, thus signifying acceptance or violation of copyright law) then Microsoft is not bound. That's my interpretation anyway. Providing a credit offer to pay for someone else's services does not, in any legal theory I've ever heard, bind you to the terms of the transaction between the buyer and the seller. You may accept certain legal responsibilities in that case (generally only as far as assuring that your offer was completed to the full written and intended terms of the contract between you and the buyer), but you have no real relation to the seller.
Correct. I enter into an agreement with the local government that in exchange for keeping an animal I will register that animal with the government so that the government may track all domestic animals within their jurisdiction. Without the license, local laws usually prohibit the keeping of animals. Thus the need for a contractual relationship between you and the local government.
Yeah, see, that's a contract. A unilateral offer to provide copying and modification rights in exchange for terms that prevent you from making modifications public without sharing the source code for them. That is a contract.
I'll say it again, a license is simply a form of contract. It's not that hard to figure out.
A license is a form of contract and lays its foundations on contract law. Which means that all the standard issues (e.g. consideration, acceptance, etc.) still apply. While consideration is usually built-in by the fact that the license provides you with rights to use something you wouldn't otherwise have, other standard contract issues still apply.
You are confused. Microsoft provided vouchers for someone else's service. Microsoft's agreement only goes as far as paying for those products on your behalf. The licensing of those products is irrelevant as Microsoft is not distributing them. They are only providing a credit toward purchases.
It's a bit like saying that because I won a car on Wheel of Fortune, CBS is now responsible for the warranty. Which is nonsense, the manufacturer is still responsible for the warranty.
That doesn't even make sense. You purchase products from Novell, and Microsoft foots the bill. You and you alone are responsible for the license agreement between you and Novell unless the use of the Microsoft vouchers contained contract terms that implicitly made Microsoft a party to the agreement. And I can't think of any reason why Microsoft would do that.
Here's the complete section in question (emphasis added):
Truth be told, I'm not really following PJ on this one. I know of no legal theory that would cause a license to reach out from a second party and latch onto a third party just because the second and third parties have an agreement. In the case of a contract that binds partners, the responsibility usually falls upon the second party to execute a compatible agreement with the third. Failure to do so would place the second party at fault. i.e. Novell could get in trouble, but Microsoft would be shielded by only having a non-GPL agreement with Novell, not directly with the Linux developers.
Now a judge might not be happy with the legal games that Microsoft is playing (can you say 'extortion'?), but I can't see him binding Microsoft to a contract they didn't directly accept.
What do you think the $10 a month is for? T-Mobile is basically signing you up for a subscription to their WiFi service. Which is probably cheaper to run than the cell service. So T-Mobile gets you to sign up for cell service AND WiFi, then gets you to use less of the expensive GSM airtime and more of the inexpensive WiFi time. Voila, T-Mobile profits.
Quite a nifty scheme, actually.