Re: Manifestation of Assent and the OSL
Lawrence E. Rosen wrote: But because the OSL is unabashedly a contract, and where contract formation can be proven -- as where click-wrap and other technical means are used to manifest assent expressly and volitionally -- contract law gives the Licensor better ways to enforce the License agsinst his licensees. A click-wrap or other contract formation procedure is not expressly required by the OSL, but a Licensor who Larry, You will be aware that people can enter into contracts *without* signing a shred of paper. Offers, and acceptance can be by conduct also. Not that I am disagreeing with you or the OSL just making sure that every one is aware of the position of law. Regards, Mahesh T Pai. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright
John Cowan wrote: You insist that you can own something 100% and relinquish 100% control at the same time. There is not a single legal precedent for this anywhere. Tell it to the FSF Marines. What GPL does is to relinquish control over *redistribution* of the material not the material itself. There is no legal precedent on GPL coz. it is clear enough, and coz. it is clear enough, no need for the 'assistance' of a court arose. Regards, Mahesh T Pai. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright
Ken Brown wrote: FSF has bullied a couple of developers, but hasn't had a judge rule in their favor yet. When they win in a court of law, I'll open my mind to their sales pitch a little more. If the means used by FSF are 'bullying', how do you describe the activities of the BSA? I regard the fact that there is no decision in favour of the GPL as a major plus point in its favour. Absence of a ruling in its favour means, to me, :- 1. The license is easy to comply with. 2. There is no decision on GPL, coz no body went to court over it. 3. Nobody went to court over GPL coz. nobody continues with the violations once the fact is pointed out. That the FSF (or any other author who released his/her software under the GPL) never had to go to court is a major plus point of the GPL. Without the restrictions of a license that insists on strict enforcement of your copyright, ... You do not need a license to protect / enforce your copyright. The statute book does it. From my research, agreeing to GPL your work does not technically revoke your ownership of the playground, but it does revoke almost all of the rights and privileges that come with ownership Will you please clarify that? I cannot control what anybody does with my work, besides assert credit, That is the *intention* of the GPL. In other words, it is not a bug but a feature. Regards, Mahesh T Pai. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Copyright
Mahesh, I appreciate your comments. It is good to hear from you. Fortunately (or unfortunately) court precedent trumps assertion. Just because a lot of people believe that something is right does not make it right - ethically or legally. There are over a hundred examples of things that were common practice for decades until ruled illegal by a court. When it comes to the law, it is not prudent to assume. GPL advocates want the GPL to become the king of all free software licenses. And if wants to be the king, it will have to go through the fire of legal review in a court. I am not being cynical, but the GPL is too overreaching. This is not just my opinion. I have visited dozens of free software websites and developer disfavor about the GPL is steadily increasing. It is just a matter of time before the tenuousness of this license ends up in a court. I think money will also force this issue into court, because inevitably, someone's confusion about the license will lead to the loss of a ton of money. When big cash is on the table, a court case is around the corner. Stay in touch. kb -Original Message- From: Mahesh T Pai [mailto:paivakil@;vsnl.net] Sent: Thursday, October 31, 2002 7:33 AM To: Ken Brown Cc: Brendan Hide; [EMAIL PROTECTED] Subject: Re: Copyright Ken Brown wrote: > FSF has bullied a couple of developers, but hasn't had a judge rule > in their favor yet. When they win in a court of law, I'll open my > mind to their sales pitch a little more. If the means used by FSF are 'bullying', how do you describe the activities of the BSA? I regard the fact that there is no decision in favour of the GPL as a major plus point in its favour. Absence of a ruling in its favour means, to me, :- 1. The license is easy to comply with. 2. There is no decision on GPL, coz no body went to court over it. 3. Nobody went to court over GPL coz. nobody continues with the violations once the fact is pointed out. That the FSF (or any other author who released his/her software under the GPL) never had to go to court is a major plus point of the GPL. > Without the restrictions of a license that insists on strict > enforcement of your copyright, ... You do not need a license to protect / enforce your copyright. The statute book does it. > From my research, agreeing to GPL your work does not technically > revoke your ownership of the playground, but it does revoke almost > all of the rights and privileges that come with ownership Will you please clarify that? > I cannot control what anybody does with my > work, besides assert credit, That is the *intention* of the GPL. In other words, it is not a bug but a feature. Regards, Mahesh T Pai. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Copyright vs? Click-wrap "contract"
IANAL, but I think I have finally nailed this sucker. If anybody disagrees with me please let me know why. You have the right to do anything with a copyrighted work only if you have agreed and complied with (and read) the license. If you have not read the license, then you are not aware of your rights to the work and you should assume that you have no rights over the work, bar the fair use rights given to you by the law and international treaties. Imagine you pick up some software from a store, but the box contains everything except the license. Do you have the right to use the software? Legally, you need to secure a license before you can use the software. Of course, nobody would, in their right mind anyway, sue you for using the software you paid them for. If the license gives you secondary rights, then you have to read that license in order to "get" those rights. If a user claims that there was no assent that the user agreed with the license, because the license was not presented to them, then there was no assent from the author that the user can *use* the work either. Fair use laws give the user some basic rights but that is it. If anything still needs clickwrap, it is the warranty. The only reason for this is that the law already gives the user fair use rights, thus potentially giving room for a suit. Other than that, I do not see why a clickwrap licenses/contract are in any way legally necessary. Here, I can easily see Larry's single-click click-wrap solution working very well. -- Brendan Hide [EMAIL PROTECTED] Technical Writer SA Computer Magazine http://www.sacm.co.za/ +27 21 715 7134 - Opinions expressed in this Email are those of the individual sending it and not necessarily of the Company. This Email is confidential. - -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Manifestation of Assent and the OSL
> Mahes T Pai wrote: > You will be aware that people can enter into contracts *without* > signing a shred of paper. Offers, and acceptance can be by > conduct also. > > Not that I am disagreeing with you or the OSL just making sure that > every one is aware of the position of law. You're right. But the issue we're dealing with is where the courts say that the conduct of using the software is not sufficient manifestation of assent to the contract terms. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright vs? Click-wrap "contract"
Brendan Hide scripsit: > You have the right to do anything with a copyrighted work only if you > have agreed and complied with (and read) the license. Not at all. You have hold of the wrong end of the stick altogether. When you buy a book, you have the right to read the book silently or out loud (but not to an audience), you can act on the information it gives you, you can study it to see how it is written in the hope of writing a better book yourself, you can even write a different book based on the same facts expressed differently, and scurvily give the author no credit whatever. You may write and publish a review praising or condemning the book in almost unlimited terms. On a less intellectual plane, you may set the book on fire, or use it to insulate your basement or to check erosion in a gully. You may give or sell it to anyone you please, or leave it around in public (absent littering laws) for the delectation of the next person to pick it up. You may lend it to your friends or the public, though you may have problems if you take money for this. All of this applies equally to movies, sound recordings, sculptures, magazines, computer programs, and any other copyrightable works. For computer programs, you also have the (U.S.) statutory right to make copies reasonably necessary for the use of the program or for backup. Copyright gives the author five and only five rights: to control the making of copies to control the making of derivative works to control the distributing of copies and derivative works to control the public performance of the work to control the public display of the work (There may also be "moral rights" that depend on the country.) > If you have not read the license, then you are not aware of your rights > to the work and you should assume that you have no rights over the work, > bar the fair use rights given to you by the law and international treaties. You should assume that you don't have any of the above five rights. But you have all the other rights of an owner over the work. (This assumes that you had no opportunity to read the license, or that you were merely invited to do so. Whether you *actually* read it is neither here nor there.) > Imagine you pick up some software from a store, but the box contains > everything except the license. Do you have the right to use the > software? Legally, you need to secure a license before you can use the > software. Of course, nobody would, in their right mind anyway, sue you > for using the software you paid them for. More than that. If you buy software in a box, and there is no license, that software is *yours*, and you can do anything you like that does not breach the above five rights. In particular, you can install it on as many computers as you like, for while this is copying, it is copying necessary to use. (IANAL, TINLA.) If the maker wants to restrict your behavior in this respect, he must get you to assent (generally by conduct, such as ripping open the envelope with the license on the outside and the disks on the inside) to a more restrictive contract. > If the license gives you secondary rights, then you have to read that > license in order to "get" those rights. If a user claims that there was > no assent that the user agreed with the license, because the license was > not presented to them, then there was no assent from the author that the > user can *use* the work either. No such assent by the author is required. The author must convince the user to contract away his rights. > Fair use laws give the user some basic > rights but that is it. Fair use (called "fair dealing" in some countries) gives you the right to do things that are normally reserved to the author; it is a defense against copyright infringement. If I write a review of your book and quote it to show what rubbish it is, that is (almost certainly) fair use, e.g. In the U.S., fair use is explicitly undefined and must be decided case-by-case, though the statute gives some guidelines that the court must consider. Most Commonwealth and European countries take a narrower view, though research and criticism are almost always exempted. -- Deshil Holles eamus. Deshil Holles eamus. Deshil Holles eamus. Send us, bright one, light one, Horhorn, quickening, and wombfruit. (3x) Hoopsa, boyaboy, hoopsa! Hoopsa, boyaboy, hoopsa! Hoopsa, boyaboy, hoopsa! -- Joyce, _Ulysses_, "Oxen of the Sun" [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: BXAPL - request for comments
Larry, > Perhaps you're still confusing terms. Those sections of the QPL don't > require that "copyrights of modifications be passed to the copyright > holder." They are simply grant-back licenses, albeit a little awkwardly > phrased. --> I still maintain that BXAPL section 12.5 is a nearly exact copy (semantically, that is, not literally) of QPL sections 3b and 6c toghether. If my understanding of English fails me at this point, what is the difference, please? > > --> Anything that is the author's prerogative under copyright law > > can be licensed to third parties under certain restrictions. > > I don't see where contract law comes in. > > Because many licenses deal with much more than "the author's prerogative > under copyright law." There are many provisions in these licenses that > have no analogue in copyright law at all, including warranty, etc., > etc., etc. --> John Cowan's mail cleared some points you're trying to make here. From his mail I conclude that you are right in pointing out that various provisions in the BXAPL will be unenforcible without invoking contract law - in addition to copyright law. I'll reconsider what this means for the BXAPL. > Damn, that was my most fervent wish. I haven't been getting enough > flames on license-discuss. > > > Why don't you come and see for yourself? Anyway, the > > English seem to like those wigs, so what? Furthermore, > > the French legal system and practices are presumably *quite* > > different from ours - and both will differ from yours and then > > again from the English. Still, intellectual property > > laws are sait > > to be quite comparable due to the international treaties on the > > subject. > > So they say. I just practice here in California and the U.S. --> Does 'practicing' imply that you are still in your apprenticeship ;-) (Sorry, couln't resist the bait) Kind Regards, Abe Kornelis. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Provision in OSL regarding Manifestation of Assent
Following extensive discussion on license-discuss and with the OSI board about click-wrap and other mechanisms for manifesting assent to licenses, I have added a new first sentence to section 9 of the Open Software License. Only the first sentence is new. 9) Acceptance and Termination. If You distribute copies of the Original Work or a Derivative Work, You must make a reasonable effort under the circumstances to obtain the express and volitional assent of recipients to the terms of this License. The rest of this section 9 and the OSL can be found at www.rosenlaw.com/osl1.1.html. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright
Dear Mr. Brown: It is evident from checking your e-mail address that you're the Vice-President Kenneth Brown of the Alexis de Toqueville Institute who recently dipped that organisation's toes into open source with an "analysis" paper[1]. Welcome to license-discuss. I've noticed that all of your posts to this mailing list to date have been, in essence, unadorned advocacy against use of the GNU General Public License by, one gathers, software engineers and those who employ them. Along the way, you've asserted that use of that licence negates ownership. You've vaguely suggested without evidence (or specifics) that that licence is at risk of being overturned in court, and that for unstated reasons the developers might not get credit for the work. You've promoted a legally unsupportable maximalist notion of what it means to "own" a copyright (while missing the irony that no software has ever been subject to such a bundle of rights, and probably never will be). You've mostly ignored cogent and helpful clarifications such as Wendy Seltzer's, Jown Cowan's, and Larry Rosen's, and gone straight back to advocacy. In short, you've been doing something of a Beltway Bandit lobbyist dance for us. What I'm left wondering is... why? The members of this mailing list conduct it not to advocate particular open-source licence over others, but rather to analyse proposed licences in light of OSI's Open Source Definition and surrounding legal issues. There are real issues we're discussing, such as mechanisms for registering licence assent, the adequacy of rights grants as opposed to contracts, and whether the OSD should address use restrictions (and how) -- not to mention discussion of several submitted licences, including two of Larry's (OSL and AFL). Maybe it's just me, but it strikes me that you, Ken Brown, not liking the GNU GPL really doesn't go especially well with the rest of those topics. [1] Referring to Mr. Brown's "Opening the Open Source Debate" white paper. http://www.roaringpenguin.com/adti2.php3 This would be the same institute that in June issued a separate white paper suggesting, to quote Internet News, "that terrorists may find it easier to hack U.S. networks run on open source infrastructure." http://www.internetnews.com/dev-news/article.php/1276831 -- Cheers,There are only 10 types of people in this world -- Rick Moen those who understand binary arithmetic and those who don't. [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright
"Ken Brown" <[EMAIL PROTECTED]> writes: > GPL advocates want the GPL to become the king of all free software licenses. > And if wants to be the king, it will have to go through the fire of legal > review in a court. Not really. The GPL relies more on public opinion than it does on the force of law. This is inevitable given the international character of free software development and the national character of law. Most programmers, grumble though they may about the GPL, will not violate it voluntarily. Any organization which tries to violate the GPL--and several have--runs into a firestorm of protest from programmers around the world. It's generally much easier to give in than to fight it in a court of law; even a victory in the court would still be a loss in the real world. > I am not being cynical, but the GPL is too overreaching. This is not just > my opinion. I have visited dozens of free software websites and developer > disfavor about the GPL is steadily increasing. It is just a matter of time > before the tenuousness of this license ends up in a court. I think money > will also force this issue into court, because inevitably, someone's > confusion about the license will lead to the loss of a ton of money. When > big cash is on the table, a court case is around the corner. Disfavor about the GPL is steadily increasing? You are obviously new to these flamewars. The GPL has been roundly despised in certain quarters since it was written. If anything, I'd say that developers accept the GPL more now than ever, since its adoption by Linux and increased understanding of what it really means. Confusion about the license leads naturally to avoidance of software under the license. It seems quite unlikely to me that confusion would ever lead to the loss of ``a ton of money.'' Anyhow, the point of [EMAIL PROTECTED] is hardly to discuss the nature of the GPL. That's what gnu.misc.discuss is for. If you want to discuss whether the GPL is an open source license, talk about it here. If you want to talk about whether the GPL is a good license, take it to gnu.misc.disucss. Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD (potentially OT)
I'm sorry for the OT post, but the mention of Sybase and OpenWatcom made me feel it was time for a reaction from me. Karen Williams from Sybase wrote: > I've been following this discussion with interest. Since some of it > is generated at least in part by Sybase's submission of a license for > OSI certification (which is based on the OSI-approved Apple Public > License, with the addition of a click-wrap structure as a preferred > alternative and a few other far less material changes), I wanted to > respond/add to a few points. Even that this might be the wrong thread for this, I'm more than a little surprised that the proposed Sybase OpenWatcom license hasn't been rejected immediately on the grounds that it in my opinion violates several requirements of the OSD. As the "Getting a License Approved" http://www.opensource.org/docs/certification_mark.php p 5 reads in full "If we find that the license does not conform to the Open Source Definition, we will work with you to resolve the problems." This suggests a license must conform to the Open Source Definition, found at http://http://www.opensource.org/docs/definition.php To mention what I believe are just a few of the current violations (the numbers are refs to the same OSD points): - 1 The proposed license does restrict redistribution. It states that the _only_ means of getting the software shall be by the act of _downloading_. This rules out e.g. CD-ROM, which seems like a rather odd restriction. However odd, it still restricts (meaningful) distribution. - 5 The proposed license does discriminate. Had You read and accepted the license on monday, it would terminate if You failed to also download the software on the same "date". Had You downloaded a tarball on a Monday, and read and accepted the license on the next day, the license would be terminated. Had You gotten the software on CD-ROM, the license would be void. The main reason for this I believe is the license clause that gives you a 30-day period to "cure such a breach". But since you can never undo neither the "download" action, or the "accept" action, you are forever out of the loop. - 6 The proposed license reads "You acknowledge that the Covered Code is not intended for use in the operation of nuclear facilities"... This seems to be for the explicit purpose of, if not forbidding at least strongly discourage, using the software in a few specific fields of endeavor. - 7 Due to the fact you need to read and accept the license, and on that same "date" _download_ the software for the license to be valid, it sure seems this is not attaching the same rights to all getting a copy. Again imagine downloading a tarball on another "date" than accepting the license, getting the software from a CD-ROM etc. - 8 in the OSD reads "License Must Not Be Specific to a Product". "OpenWatcom" seems to be a _very_ specific product. In addition I find it odd that from http://www.openwatcom.org/license_info/open_watcom_lic.html you can read "YOU INDICATE YOUR ACCEPTANCE BY IN ANY MANNER USING (INCLUDING WITHOUT LIMITATION BY REPRODUCING, MODIFYING OR DISTRIBUTING) THE SOFTWARE.". That is, with the mere act of _reproduction_ this software tries to lock me into some kind of legal trap, claiming I somehow have accepted the license! What if I run a CD duplication plant? What if I just _carry_ a CD containing this software from one place to another (distributing)? What if I break said CD in 1000 pieces (modifying)? I hope the OSD board members considers these points, and vote to deny approval of this license. Again, I'm sorry for the OT post. Thank you for your time, Mike -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Copyright vs? Click-wrap "contract"
On Thursday 31 October 2002 07:42 am, Brendan Hide wrote: > You have the right to do anything with a copyrighted work only if you > have agreed and complied with (and read) the license. Bull pucky! The vast majority of copyrighted works don't even have licenses. Reaching my hand over about two feet, I find myself picking up a copyrighted work at random. This appears to be "In the Court of the Crimson King", by King Crimson. Let's see if there's a license in it...no there is not. Let me reach in the other direction... "The C++ Standard Libary" by Nicolai Josuttis...no license. Licenses and copyrights are beasts residing in different phyla. > Imagine you pick up some software from a store, but the box contains > everything except the license. Do you have the right to use the > software? Legally, you need to secure a license before you can use the > software. Of course, nobody would, in their right mind anyway, sue you > for using the software you paid them for. If I pick up some software from a store and pay for it, and obtain a sales reciept, then I am the legal owner of that copy. If I have a sales receipt then a sale has been made. As an owner of the copy, I possess numerous rights, including the right to use, dispose of, make archival copies of, and reverse engineer the software. Of course, many lawyers will disagree with me. But the boxes and receipts in my possession argue in my favor. One example: Windows ME. The box clearly says "Microsoft Windows Millennium Edition Operating System". The same is listed on the "Certificate of Authenticity". -- David Johnson ___ http://www.usermode.org pgp public key on website -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
