I can see how testing to see if a contract is illusory and invalidating it on those grounds complements the older test for consideration.
Honestly, my gut feeling on this (I'll have to consider it for a while before my thoughts really crystallize some more) is that consideration encompasses illusion. Is it inaccurate to say that a clause which would be illusory is not if there is a valid alternative course of action? (e.g. I promise to pay you, if I don't we go to impartial arbiters...)
But I don't feel that consideration, no matter how weak, should be eliminated. What's wrong with a little redundancy or at the very least, a backup?;) Obviously many people (including you, I'm sure) don't really care what I think.
But I'm still not happy with the idea. We have a lot of screwy notions going around wrt the law. Getting rid of consideration sounds like one of them to me. So how again am I being unfunny and/or misinterpreting the law?
IANAL, but AFAIK it depends on the state you live in; I don't recall that it's a federal issue. Many state governments post their laws online, although your best bet is to have a lawyer find out for you.
Sadly, I don't qualify for overtime, but on the bright side, my contract is rapidly coming back up and this company would probably die without me and one or two other guys.;)
FN5. Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under s 117.
The trick is that if the license that licensees agreed to included giving up 117 being non-infringing, the ultimate decision of the case is understandable. Still kind of stupid, but understandable. The Triad case is also in this vein.
But when you go to the store and make a horrible mistake by buying a copy of Windows;) no license has yet been agreed upon by both parties. It's possible that opening the box constitutes agreement to the license, but it's unlikely. Clicking on the agree button in the installer, on the other hand, is much more likely to be considered valid agreement.
In the case of GPL software, if you legally obtain an authorized copy (easy to do) you are not bound by the license, but since first sale has effectively occured, you are protected by 117. This is how I'm seeing it, anyway.
Really, software licenses aren't going to be able to supplant first sale in between purchase and installation (incld. agreement) unless there's a lawyer or someone at the store that makes you agree as a PREcondition of sale. Triad is actually a good precedent ironically enough.
Pray tell, how am I doing any of the above? Admittedly, it's news to me that consideration is being eliminated on a wide scale, but if the post I replied to was accurate, I fail to see the benefit.
Well like I said around here someplace, once you legally obtain an authorized copy of the software you're free to use it however you want. You don't HAVE to agree to the GPL or the MS EULA. You can use it without agreeing. Managing to do so may be tricky when you have installers that won't do anything when you disagree, but they can be gotten around quite legally. Of course, IANAL, but this is pretty evident anyway IMHO.
17 USC is federal copyright law. It's suprisingly enforcable. The doctrines of fair use, first sale, etc. come from a long line of constitutional decisions but are also written into law these days. (they would apply even if the law said otherwise; thank god for judicial review)
Which court decided that copying from one memory to another was infringing? Do you have any further information?
And from the perspective of the workers, they're being asked to give their employers 15 hours of work a week for free.
I'm a capitalist. I *HATE* working for free. If WorldCom can't succeed without the employees giving it free gifts it's being mismanaged. REAL businesses don't need handouts.
Bzzt. Wrong, but thank you for playing. We have some lovely parting gifts for you, including a link to 17 USC 117 (a)(1) which specifically states that it is not an infringement for the owner of a computer program to copy it in the course of using it.
This is a common misconception. But you don't have to agree to anyone's license to use software - not even MS's. Actually managing to use it may be tricky however.
But ironically enough, while the GPL is quite unusual as far as the exercise of copyrights go, it does try to achieve the same thing that copyright law does.
Remember the copyright clause of the Constitution. Copyrights (and patents) exist to further the progress of science and the useful arts. I don't think that anyone here is going to deny that the GPL has also helped to further progress. (certainly it's done so as much as other copyrighted material like Windows or cheap romance novels - both of which are comparable in quality, imho)
The real issue underlying the GPL of course is does copyright really achieve it's sole stated purpose? Personally I think it needs massive reform; it's the tool of rich corporations now, and is not promoting squat.
Think of it like this: Which is a better long-term strategy? Replanting trees after you cut them down for paper, or assuming that there will always be more trees?
The GPL is rather like recycling. Not only are the first generation of GPLed works going to benefit everyone, but no one is allowed to re-close them and prevent the benefits from continuing to help the community.
Simply dumping it into the public domain would not ensure that there is a second generation of public domain works. Instead closed companies would use the first public domain works, but not give anything back.
The GPL is an attempt to ensure that the community is refreshed insofar as people find the software useful and modify it. Yes, it's somewhat more restrictive of your freedom. But it limits the freedom that you get with p.d. or BSDL works just enough to ensure that refresh. Not any more, really.
It's very elegant in that respect.
Naturally, if there were no copyright at all, things would be radically different, but the GPL is a good thing at the present time. Even if it's a headache, it's damn useful.
I don't think that the GPL runs afoul of First Sale doctrine. First sale operates like so: Once a copyright holder sells a copy of his work, he can no longer dictate anything about how copies he authorized to be made may be resold.
However, let's think seriously about GPL'ed works for a moment. Anyone may obtain (whether free or by purchasing) GPLed software. As with ANY copyrighted work (barring the DMCA, which many people are fighting - join the cause) the purchaser can modify it to their heart's content. They can make a zillion kajillion copies. They've got a huge amount of leeway.
But as with any copyrighted work, the purchaser is ONLY allowed to sell the copy he bought (and which was authorized by the copyright holder). Other copies must be destroyed, and unless the code is extremely modified so as not to be a derivative work (e.g. using a printout of the Linux kernel in a collage) the modified versions must also be destroyed upon the resale of the original copy.
The GPL doesn't change that at all. But if you agree to it, you acquire the normally unobtainable right to create and redistribute copies, and to modify and redistribute derivative works. The restriction on this (a good example of quid pro quo) is that it must fall under the same license.
If you want the extra rights, you have to take the limitations. First sale still applies actually, as even if you accept the GPL, you can sell the original copy however you like.
Most other software licenses (e.g. MS EULAs) take away nearly all of the rights that you automatically get b/c of the way that copyright laws are structured. Then they let you be so favored as to use something you paid for under their terms. (sometimes including infringement of fair use and first sale among other things)
EULAs restrict and are probably illegal. Fortunately of course, if you don't agree to them there's nothing but technical measures (which are always breakable in the end) keeping you from using the software only restricted by normal copyright law.
The GPL only gives. It just doesn't give as much as the BSD license, is all. It probably is legal.
Yes, I agree completely that people who create information should be paid. Given that I myself am an artist, I've got quite an interest in that;)
But generally you end up paying for either a good (e.g. a painting) or a service. (e.g. having a painter paint something for you) I think that's totally cool. Copyrights screw this up somewhat. Once they enter the picture even if you buy a painting, you're restricted with what you can do with it. There's no physical reason why; it's just laws that first hit the books a few hundred years ago.
Artists used to get compensated before there were copyrights; wealthy people and governments commissioned paintings and written works and such. (which is still commonplace) And even the poor usually decorated their stuff; other than logos and icons we're still under the foot of the Bauhaus movement. Things are very very plain by and large.
This wasn't true in all cases of course, but generally if you had time to spend doing anything but subsistence farming, there would be creative works.
---
As for information being ownable, nope, still not true. To own something you must satisfy three conditions (and this is not just a legal definition, but about the only good definition there is of ownership): 1) You must be able to use the item in question 2) You must be able to control others' use of the item in question 3) You must be able to dispose of the item as you see fit.
Information easily satisfies the first requirement; if you have a diary, you can read through it, revise it, etc. Easy.
Information does not satisfy the second requirement; remember, information is carried through various mediums. When you read something, the printed letters don't get moved from the paper into your brain. Instead a copy is made within your mind. Well this means that if your little brother reads your diary, you can't make him forget it. You can't control how others use the information once they get it.
And information doesn't satisfy the last requirement either. You can destroy or sell or give away tangible mediums containing the information - like the diary itself. But you (and possibly others) will retain your memories of the contents. Generally, people can't forget things at will.
This sounds weird as hell, but remember that we're not talking about the diary per se, we're talking about the information that is written in the diary.
None of this prevents you from being deeply embarrassed or angry if the information becomes widespread, and I'm not suggesting that people be compelled to divulge everything they know to anyone. (in fact, I'm not even advocating the abolition of copyright, though it does need serious reform and I wouldn't lose sleep if it were abolished) All I'm saying here is that unlike a car, which can clearly be owned, information can't be.
Lastly, even if there were Star Trek type replicators, cars would still be ownable. If you somehow got one and tried to copy a car, you would really copy information; all the minute details _about_ the car, which would then be used to make an identical car. Doesn't mean that you can drive my car. The effects however, would largely be the same.
That's the most absurd statement I've seen in a while. Read 17 USC 117 (a)(1).
Basically, if you buy software, it's yours. Not the copyright, but as long as you don't distribute copies you make (selling what you bought is totally fine) you're ok. Unfortunately it can be difficult to *use* it without inadvertently ending up with a much crappier license. But if you can get around it, you're not bound by it IMHO. Of course, IANAL.
There is no license. Music is covered very nicely under copyright law: you can use and copy it but you can't distribute copies you make; you can sell the original copy; you can use it in your own work as long as it's fairly original; playing it to a massive audience (e.g. on the radio or at a stadium or some such) is going a bit too far, but playing it for friends in your living room is a-ok.
Where the hell do you think there's a license related in any way to generic audio CDs? I'd love to know.
Restrictions on the sharing of music are entirely artificial in nature. There's no inherent quality about any kind of information that prohibits it from being shared.
On the other hand, there are a finite number of cars, houses and other material goods; they cannot (presently) be copied and redistributed as trivially as we can copy and redistribute information. Information cannot be owned; it's impossible. Our laws don't even claim otherwise, they merely restrict some instances of certain types of redistribution of unauthorized copies.
So we do not HAVE to share music, and I would never argue that we do, music is more valuable to everyone when everyone can listen to, use and redistribute it without limits. If music were a tangible thing like cars, this would no longer hold true.
You've got to admit that the copyright, patent and trademark laws in this country are being soundly abused by moneyed interests. But the existance of any of these restrictions on the use of information are only justifiable when they serve a public good.
Communism of course, is a red herring. It might be nice, but I'm too cynical to believe that it'll ever be widespread. Most countries that claimed to be communist were in fact tyrannical dictatorships of the worst sort.
Yeah honestly you'd think the Unicode guys would have created a few symbols out of thin air that dealt with directories so that these problems wouldn't come up all the time.
The Alto predated the Apple I by several years. It was the first personal computer. It just cost a fortune and was never particularly available outside of Xerox. The Apple I was a hobbyist's machine, really. It was just a logic board. The first 'real' personal computer from Apple was the Apple II. Which was designed during 76 and 77 and began being sold in 77.
And the IBM PC hit the market in 80 or 81 IIRC, and had been started (as Project Chess) in probably 79.
That would be Netscape's fault. The guys have shipped about an order of magnitude more crappy ass Mac browsers out the door than good ones. My favorite Netscape experience was watching it crash an SGI (this would be around '95 or so) so hard that it had to be rebooted. Two SGI engineers who were right there had no idea how it was managing this.
For work I need to use IE and Netscape. For home I use iCab, which is a very nice small, fast, Mac-only browser. I'm using it right now....
Most programs that install cdevs and inits do this. And if they've replaced older ones with new versions there are going to be concerns about stability if they didn't. There's some promise that OS X Packages will alleviate most of this annoyance.
IIRC the 'Protect System Folder' preference in the General Control Panel has been around since System 7.1P or so. I never use it b/c I know exactly what I'm doing to my system, but I think that it will prevent the prefs from being trashed, among other things. Easy to disable of course....
Gah?! I guess that IBM, DEC and the smaller companies (e.g. Honeywell) were mom and pop operations? Do you really think that we graduated from counting on our fingers to microcomputers?
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I can see how testing to see if a contract is illusory and invalidating it on those grounds complements the older test for consideration.
;) Obviously many people (including you, I'm sure) don't really care what I think.
Honestly, my gut feeling on this (I'll have to consider it for a while before my thoughts really crystallize some more) is that consideration encompasses illusion. Is it inaccurate to say that a clause which would be illusory is not if there is a valid alternative course of action? (e.g. I promise to pay you, if I don't we go to impartial arbiters...)
But I don't feel that consideration, no matter how weak, should be eliminated. What's wrong with a little redundancy or at the very least, a backup?
But I'm still not happy with the idea. We have a lot of screwy notions going around wrt the law. Getting rid of consideration sounds like one of them to me. So how again am I being unfunny and/or misinterpreting the law?
IANAL, but AFAIK it depends on the state you live in; I don't recall that it's a federal issue. Many state governments post their laws online, although your best bet is to have a lawyer find out for you.
;)
Sadly, I don't qualify for overtime, but on the bright side, my contract is rapidly coming back up and this company would probably die without me and one or two other guys.
FN5. Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under s 117.
The trick is that if the license that licensees agreed to included giving up 117 being non-infringing, the ultimate decision of the case is understandable. Still kind of stupid, but understandable. The Triad case is also in this vein.
But when you go to the store and make a horrible mistake by buying a copy of Windows
In the case of GPL software, if you legally obtain an authorized copy (easy to do) you are not bound by the license, but since first sale has effectively occured, you are protected by 117. This is how I'm seeing it, anyway.
Really, software licenses aren't going to be able to supplant first sale in between purchase and installation (incld. agreement) unless there's a lawyer or someone at the store that makes you agree as a PREcondition of sale. Triad is actually a good precedent ironically enough.
Pray tell, how am I doing any of the above? Admittedly, it's news to me that consideration is being eliminated on a wide scale, but if the post I replied to was accurate, I fail to see the benefit.
Well like I said around here someplace, once you legally obtain an authorized copy of the software you're free to use it however you want. You don't HAVE to agree to the GPL or the MS EULA. You can use it without agreeing. Managing to do so may be tricky when you have installers that won't do anything when you disagree, but they can be gotten around quite legally. Of course, IANAL, but this is pretty evident anyway IMHO.
17 USC is federal copyright law. It's suprisingly enforcable. The doctrines of fair use, first sale, etc. come from a long line of constitutional decisions but are also written into law these days. (they would apply even if the law said otherwise; thank god for judicial review)
Which court decided that copying from one memory to another was infringing? Do you have any further information?
And from the perspective of the workers, they're being asked to give their employers 15 hours of work a week for free.
I'm a capitalist. I *HATE* working for free. If WorldCom can't succeed without the employees giving it free gifts it's being mismanaged. REAL businesses don't need handouts.
This is a common misconception. But you don't have to agree to anyone's license to use software - not even MS's. Actually managing to use it may be tricky however.
They're eliminating consideration because it'll be uniform? That's the stupidest thing I've ever heard. Bastards.
I don't want to say ;)
But ironically enough, while the GPL is quite unusual as far as the exercise of copyrights go, it does try to achieve the same thing that copyright law does.
Remember the copyright clause of the Constitution. Copyrights (and patents) exist to further the progress of science and the useful arts. I don't think that anyone here is going to deny that the GPL has also helped to further progress. (certainly it's done so as much as other copyrighted material like Windows or cheap romance novels - both of which are comparable in quality, imho)
The real issue underlying the GPL of course is does copyright really achieve it's sole stated purpose? Personally I think it needs massive reform; it's the tool of rich corporations now, and is not promoting squat.
Think of it like this: Which is a better long-term strategy? Replanting trees after you cut them down for paper, or assuming that there will always be more trees?
The GPL is rather like recycling. Not only are the first generation of GPLed works going to benefit everyone, but no one is allowed to re-close them and prevent the benefits from continuing to help the community.
Simply dumping it into the public domain would not ensure that there is a second generation of public domain works. Instead closed companies would use the first public domain works, but not give anything back.
The GPL is an attempt to ensure that the community is refreshed insofar as people find the software useful and modify it. Yes, it's somewhat more restrictive of your freedom. But it limits the freedom that you get with p.d. or BSDL works just enough to ensure that refresh. Not any more, really.
It's very elegant in that respect.
Naturally, if there were no copyright at all, things would be radically different, but the GPL is a good thing at the present time. Even if it's a headache, it's damn useful.
I don't think that the GPL runs afoul of First Sale doctrine. First sale operates like so: Once a copyright holder sells a copy of his work, he can no longer dictate anything about how copies he authorized to be made may be resold.
However, let's think seriously about GPL'ed works for a moment. Anyone may obtain (whether free or by purchasing) GPLed software. As with ANY copyrighted work (barring the DMCA, which many people are fighting - join the cause) the purchaser can modify it to their heart's content. They can make a zillion kajillion copies. They've got a huge amount of leeway.
But as with any copyrighted work, the purchaser is ONLY allowed to sell the copy he bought (and which was authorized by the copyright holder). Other copies must be destroyed, and unless the code is extremely modified so as not to be a derivative work (e.g. using a printout of the Linux kernel in a collage) the modified versions must also be destroyed upon the resale of the original copy.
The GPL doesn't change that at all. But if you agree to it, you acquire the normally unobtainable right to create and redistribute copies, and to modify and redistribute derivative works. The restriction on this (a good example of quid pro quo) is that it must fall under the same license.
If you want the extra rights, you have to take the limitations. First sale still applies actually, as even if you accept the GPL, you can sell the original copy however you like.
Most other software licenses (e.g. MS EULAs) take away nearly all of the rights that you automatically get b/c of the way that copyright laws are structured. Then they let you be so favored as to use something you paid for under their terms. (sometimes including infringement of fair use and first sale among other things)
EULAs restrict and are probably illegal. Fortunately of course, if you don't agree to them there's nothing but technical measures (which are always breakable in the end) keeping you from using the software only restricted by normal copyright law.
The GPL only gives. It just doesn't give as much as the BSD license, is all. It probably is legal.
Yes, I agree completely that people who create information should be paid. Given that I myself am an artist, I've got quite an interest in that ;)
But generally you end up paying for either a good (e.g. a painting) or a service. (e.g. having a painter paint something for you) I think that's totally cool. Copyrights screw this up somewhat. Once they enter the picture even if you buy a painting, you're restricted with what you can do with it. There's no physical reason why; it's just laws that first hit the books a few hundred years ago.
Artists used to get compensated before there were copyrights; wealthy people and governments commissioned paintings and written works and such. (which is still commonplace) And even the poor usually decorated their stuff; other than logos and icons we're still under the foot of the Bauhaus movement. Things are very very plain by and large.
This wasn't true in all cases of course, but generally if you had time to spend doing anything but subsistence farming, there would be creative works.
---
As for information being ownable, nope, still not true. To own something you must satisfy three conditions (and this is not just a legal definition, but about the only good definition there is of ownership):
1) You must be able to use the item in question
2) You must be able to control others' use of the item in question
3) You must be able to dispose of the item as you see fit.
Information easily satisfies the first requirement; if you have a diary, you can read through it, revise it, etc. Easy.
Information does not satisfy the second requirement; remember, information is carried through various mediums. When you read something, the printed letters don't get moved from the paper into your brain. Instead a copy is made within your mind. Well this means that if your little brother reads your diary, you can't make him forget it. You can't control how others use the information once they get it.
And information doesn't satisfy the last requirement either. You can destroy or sell or give away tangible mediums containing the information - like the diary itself. But you (and possibly others) will retain your memories of the contents. Generally, people can't forget things at will.
This sounds weird as hell, but remember that we're not talking about the diary per se, we're talking about the information that is written in the diary.
None of this prevents you from being deeply embarrassed or angry if the information becomes widespread, and I'm not suggesting that people be compelled to divulge everything they know to anyone. (in fact, I'm not even advocating the abolition of copyright, though it does need serious reform and I wouldn't lose sleep if it were abolished) All I'm saying here is that unlike a car, which can clearly be owned, information can't be.
Lastly, even if there were Star Trek type replicators, cars would still be ownable. If you somehow got one and tried to copy a car, you would really copy information; all the minute details _about_ the car, which would then be used to make an identical car. Doesn't mean that you can drive my car. The effects however, would largely be the same.
Basically, if you buy software, it's yours. Not the copyright, but as long as you don't distribute copies you make (selling what you bought is totally fine) you're ok. Unfortunately it can be difficult to *use* it without inadvertently ending up with a much crappier license. But if you can get around it, you're not bound by it IMHO. Of course, IANAL.
There is no license. Music is covered very nicely under copyright law: you can use and copy it but you can't distribute copies you make; you can sell the original copy; you can use it in your own work as long as it's fairly original; playing it to a massive audience (e.g. on the radio or at a stadium or some such) is going a bit too far, but playing it for friends in your living room is a-ok.
Where the hell do you think there's a license related in any way to generic audio CDs? I'd love to know.
Restrictions on the sharing of music are entirely artificial in nature. There's no inherent quality about any kind of information that prohibits it from being shared.
On the other hand, there are a finite number of cars, houses and other material goods; they cannot (presently) be copied and redistributed as trivially as we can copy and redistribute information. Information cannot be owned; it's impossible. Our laws don't even claim otherwise, they merely restrict some instances of certain types of redistribution of unauthorized copies.
So we do not HAVE to share music, and I would never argue that we do, music is more valuable to everyone when everyone can listen to, use and redistribute it without limits. If music were a tangible thing like cars, this would no longer hold true.
You've got to admit that the copyright, patent and trademark laws in this country are being soundly abused by moneyed interests. But the existance of any of these restrictions on the use of information are only justifiable when they serve a public good.
Communism of course, is a red herring. It might be nice, but I'm too cynical to believe that it'll ever be widespread. Most countries that claimed to be communist were in fact tyrannical dictatorships of the worst sort.
So that it doesn't look like a cherry tomato? (this is the real reason)
Yeah honestly you'd think the Unicode guys would have created a few symbols out of thin air that dealt with directories so that these problems wouldn't come up all the time.
The Alto predated the Apple I by several years. It was the first personal computer. It just cost a fortune and was never particularly available outside of Xerox. The Apple I was a hobbyist's machine, really. It was just a logic board. The first 'real' personal computer from Apple was the Apple II. Which was designed during 76 and 77 and began being sold in 77.
And the IBM PC hit the market in 80 or 81 IIRC, and had been started (as Project Chess) in probably 79.
That would be Netscape's fault. The guys have shipped about an order of magnitude more crappy ass Mac browsers out the door than good ones. My favorite Netscape experience was watching it crash an SGI (this would be around '95 or so) so hard that it had to be rebooted. Two SGI engineers who were right there had no idea how it was managing this.
For work I need to use IE and Netscape. For home I use iCab, which is a very nice small, fast, Mac-only browser. I'm using it right now....
Most programs that install cdevs and inits do this. And if they've replaced older ones with new versions there are going to be concerns about stability if they didn't. There's some promise that OS X Packages will alleviate most of this annoyance.
IIRC the 'Protect System Folder' preference in the General Control Panel has been around since System 7.1P or so. I never use it b/c I know exactly what I'm doing to my system, but I think that it will prevent the prefs from being trashed, among other things. Easy to disable of course....
Firstly, you can sell GPL'ed software. Not everyone wants to download it or compile it themselves. This may seem weird, but it's true.
Secondly, he didn't say he was writing GPL'ed software. He's writing software for an *OS* that is GPL'ed.
Gah?! I guess that IBM, DEC and the smaller companies (e.g. Honeywell) were mom and pop operations? Do you really think that we graduated from counting on our fingers to microcomputers?