Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Sean Kellogg]

On Wednesday 13 April 2005 10:13 pm, Raul Miller wrote:
> > > What compels you to agree with an EULA?
>
> On Wed, Apr 13, 2005 at 06:54:29PM -0700, David Schwartz wrote:
> > If you do not agree with the EULA, you cannot and do not acquire
> > lawful possession of the work.
>
> What about cases where you pay for the software before you're allowed
> to see the EULA?

It is enforcable and is called a rolling contract.  Seminal case is ProCD, 
Inc. v. Zeidenberg, 86 F.3d 1447 (7th Circut, 1996).

-Sean

-- 
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Raul Miller]

> > What compels you to agree with an EULA?

On Wed, Apr 13, 2005 at 06:54:29PM -0700, David Schwartz wrote:
>   If you do not agree with the EULA, you cannot and do not acquire
> lawful possession of the work.

What about cases where you pay for the software before you're allowed
to see the EULA?

-- 
Raul


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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Raul Miller]

> > [2] I don't think you can construe this paraphrase of the GPL authors
> > claims as meaning that a person using that grant is free to ignore the
> > conditions imposed by the GPL.

On Wed, Apr 13, 2005 at 03:49:44PM -0700, Sean Kellogg wrote:
> Not quite sure what you mean hear...  but I do know that a grant cannot
> impose active conditions.  If the active conditions are enforceable,
> then they need to be in a contract.  If my grant says "you can do X,
> but only if you do Y" then it it is a contrct.  If, instead, my grant
> says "you can do X, but not Y" then its less a condition and more that
> I reserved Y from the list of rights I gave you, so its not a contract.
> The issue with the GPL is that waving right to warrenties is like saying
> "you can do X, but only if you do Y", which is a contract.

Basically, I think the GPL offers a contract, but the GPL is significantly
more than just a contract.  The warranty disclaimer is a disclaimer
regardless of whether or not you use the copyright grant, though it's
undoubtedly stronger if you do use that grant.

> Additionally, I don't think we get anywhere with the statement that "some 
> jurisdictions look at it differently."  This is always going to be the case, 
> and if we dwelled on it for too long the whole of open source software would 
> be swallowed by lawyers trying to write exceptions for each and every 
> jurisdiction.  All I can do is tell you what I believe the U.S. law is on a 
> subject matter.

Well... the answers.com page on first sale doctrine indicates some
significantly different results from different jurisdictions, and
indicates that until this is resolved by the supreme court there's good
reason to be uncertain about what that eventual precedent will be.

> > > That questions falls to a matter of agency law, not contract law.
> > > Same goes for your installation of software on behalf of your dad.
> > > When you clicked that agree button, you did so as his agent and he will
> > > be liable.
> >
> > But I didn't click that agree button.
> >
> > He got his system with software pre-loaded.  Or, the neighbor installed
> > it for him.
> > 
> > If someone entered into a contract on Dad's behalf, and did not
> > disclose the contract to him, they are probably liable instead of Dad.
> > For example, if the EULA prevents resale of the software, and Dad
> > decides to sell the computer at a garage sale, I doubt he would be in
> > any danger of prosecution.  There would be no evidence whatsoever that
> > Dad had entered into a contract to not sell that part of the system.

> Agency law says otherwise.  If I instruct my neighbor to install software
> then I am instructing that neighbor to consent on my behalf.

Agency law places on the agent an obligation to inform the principal
of the terms of contracts the agent has entered the principal into.
Until the agent informs the principal of these contracts, they are the
liability of the agent.

> If the neighbor installs the software without my permission, ...

That's not the issue.  The neighbor recommended the machine in the first
place, and Dad has been following the neighbor's recommendations on what
to get and so on.  Dad just wants something simple that he can use.

> Preinstalled software, if I had to take a guess, probably comes with a 
> contractual agreement that you are said to have agreed to when you buy the 
> thing.  Although I bet you have the right to return all of that software if 
> you don't agree.

Sure, there were probably some plastic envelope with EULAs which were
included with the stuff when the neighbor picked up the machine for Dad.
There might even have been some click through licenses that the neighbor
dealt with while getting the machine up and working.

But if that neighbor is in Iraq now, it's kinda hard to ask him.

> > In any event, it's not always the case that the existence of
> > click-through license means that a user has accepted the license.
> 
> Thats right, if I can manage to install the software without seeing the 
> license, then I can probably get out of it.  This is why the technology 
> requiring the click to actually happen is getting better and better.

And then there's 17 USC 1201.

But there's other issues as well (for example, buying software under
a student discount and then reselling it -- without clicking on the
license).

Anyways, my original point is that you cannot simply assume that the
person in question has clicked on the click-through license.  That's a
fact that needs to be established.

-- 
Raul


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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Raul Miller]

On Wed, Apr 13, 2005 at 11:26:47PM +0200, Francesco Poli wrote:
>  US copyright  italian author's right ("diritto d'autore italiano")
>  --
>  compilation work  <--->   collective work ("opera collettiva")
>  derivative work   <---> creative elaboration ("elaborazione creativa")
> 
> In the USA, a compilation work is a collective work has its own
> copyright and thus is also a derivative work.
> 
> I hope to get it right... or am I confused?

Sounds right.

-- 
Raul


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[Long OT] Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Kyle Moffett]

This thread should probably get moved off-list soon, it's like
beating the dead horse long after its flesh has decayed and its
bones disintegrated to dust.
On Apr 13, 2005, at 21:54, David Schwartz wrote:
On Tue, Apr 12, 2005 at 12:05:59PM -0700, David Schwartz wrote:
Yes, the GPL can give you rights you wouldn't otherwise have. A
EULA can take away rights you would otherwise have.

What compels you to agree with an EULA?
If you do not agree with the EULA, you cannot and do not acquire lawful
possession of the work.
Of course, one could always assert the following:
  1) I went to a store
  2) I found a box
  3) I went to the cash register
  4) I gave money to the cashier for the box
  5) I took the box home
  6) I opened the box and took out the contents
Now, to the end user, the above is the same procedure for purchasing a
box of cereal or a piece of software, therefore the restrictions are the
same.  I'm not allowed to distribute the copyrightable materials, which
for a cereal box is the images on the box, and for a CD is the digital
data stored therein.  Other than that, I can take a hammer and smash my
CD/cereal, I can make a dozen copies of the CD/box-art and mount them
on the wall or burn them, both of which are symbolic speech.  I can make
backup copies of my cereal box-art/CD too.
At what point of the above did I agree to any license?  As far as I
know, a license (IE: contract) is not valid for a product unless made at
the point-of-sale, before exchanging money.  This is especially valid
since almost all computer retailers refuse refunds for opened software.
When you have to open the box to see the license, that's bad, but when,
as I've seen far too many times, you have to break the seal and insert
the CD to even _see_ the license, it cannot be valid.
The only real point of most of the EULAs is to protect the owners
copyright, which is implicitly protected in any case.
Cheers,
Kyle Moffett
-BEGIN GEEK CODE BLOCK-
Version: 3.12
GCM/CS/IT/U d- s++: a18 C>$ UB/L/X/*(+)>$ P+++()>$
L(+++) E W++(+) N+++(++) o? K? w--- O? M++ V? PS+() PE+(-) Y+
PGP+++ t+(+++) 5 X R? tv-(--) b(++) DI+ D+ G e->$ h!*()>++$ r  
!y?(-)
--END GEEK CODE BLOCK--


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RE: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[David Schwartz]

> On Tue, Apr 12, 2005 at 12:05:59PM -0700, David Schwartz wrote:
> > Yes, the GPL can give you rights you wouldn't otherwise have. A
> > EULA can take away rights you would otherwise have.

> What compels you to agree with an EULA?

If you do not agree with the EULA, you cannot and do not acquire lawful
possession of the work.

> > In the few court cases that have directly addresses shrink-wrap and
> > click-wrap type agreements, I've seen them consistently upheld. However,
> > this is not relevent to the GPL issue at all because the GPL
> > can only give
> > you rights you wouldn't otherwise have, it cannot take away any rights.

> The GPL offers you certain rights if you agree to be bound by certain
> conditions.

Right, and normally the way you become bound by the GPL is if you do
something that you could not acquire the right to do any other way. That's
why GPL issues frequently hinge on whether you could not acquire the right
any other way. Possible other ways include first sale and fair use.

> You are not compelled to agree to those conditions, but those who do
> not gain no rights from the GPL.

Right, again, that's why it's important to look at whether they could 
have
acquired the rights any other way.

DS



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RE: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[David Schwartz]

>  >Would you agree that compiling and linking a program that
>  >uses a library creates a derivative work of that library?

> No. Compiling and linking are mechanical,
> non-intellectually-novel acts. At most, you have a collective
> work where the real intellectually-novel work was to select
> what goes into the collective.

Compiling and linking are mechanical, but unless you want to argue that 
the
result is not a single work, it clearly creates a derivative work of all the
things linked. The creativity is not in the linking itself but in the
creation of the individual works such that they can be linked together.

>  >Wouldn't you agree that this is the normal form of use of a
>  >library?  And doesn't first sale give you the right to normal
>  >use of a work you have legally acquired?
>
> Yes. And yes, if you buy a copy of the library, yes (but
> notice: not if you downloaded it for free from the Net).

There is no legal distinction. Your rights come not from the fact that 
you
paid money for the work but simply from the fact that you acquired it
legally. Again, the reductio ad absurdum is the guy who drops copies of his
poem from an airplane and then demands royalities from everyone who reads
it. If you legally acquired it, you get the bundle of rights under first
sale.

>  >There are many ways you can lawfully create a derivative work
>  >without explicit permission of the copyright holder. One
>
> No. The copyright law states that the copyright owner has the
> monopolistic right to create derivative works.

Yes, but this doesn't restrict first sale or fair use. You cannot use a
library without creating a derivative work, so if first sale grants you
rights to use, it automatically grants you the right to do anything
necessary for use.

>  >clear case is when you lawfully possess the work, there is no
>  >EULA or shrink-wrap agreement, and you need to produce a
>  >derivative work to use the work in the ordinary fashion.

> No... Try writing a book with Harry Potter as your main
> character and JKR's lawyers will be at your door soon.

Sometimes I wonder if you are reading what I said or not. I said "you 
need
to produce a derivative work to use the work in the ordinary fashion" and
you say "No" and follow with an example where you clearly *don't* need to
produce a derivative work to use the work in the ordinary fashion.

>  >This is, by the way, the FSF's own position. It's not
>  >something I'm making up or guessing at.
>
> Please send us some pointers to this statements for the FSF.

Read any of Eben Moglen's posts.

>  >"The license does not require anyone to accept it in order to
>  >acquire, install, use, inspect, or even experimentally modify
>  >GPL'd software. All of those activities are either forbidden
>
> Wrong again. GPL, section 0, para 1: "Activities other than
> copying, distribution, and *modification* are not covered by
> this License". Emphasis mine.

You are free to disagree with the FSF's interpretation of the GPL, but 
you
are not free to misrepresent the FSF's interpreration.

>  >or controlled by proprietary software firms, so they require
>  >you to accept a license, including contractual provisions
>  >outside the reach of copyright, before you can use their
>  >works.  The free software movement thinks all those
>  >activities are rights, which all users ought to have; we
>  >don't even want to cover those activities by license."
>
> Except for the modification part, which *is* the scope of
> regular, Berne-convention-molded copyrights law.

Feel free to disagree with the FSF about the meaning of the GPL, but it 
is
the FSF's position that you can modify a GPL'd work without agreeing to the
GPL.

>  >Now we draw different conclusions based on this, but we agree
>  >on this. You do not need to agree to the GPL to create
>  >derivative works.
>
> No, we disagree on this too.

I don't know who "we" is, but I agree with the FSF.

>  >>If you will keep your copy and registration # of windows,
>  >>yes, you *must* wipe out the machine before selling it.
>  >
>  >
>  >Since there is no copy or registration number of a GPL'd work
>  >to keep, this actually argues the reverse of what I said. If
>  >I legally acquire ten copies of Windows, I can perform normal
>  >use on those ten copies and then transfer those copies to
>  >someone else.

> This is not the point: you still would have to wipe your ten
> computers clean if you want to sell the ten copies you have.

Right. You cannot increase the number of copies.

> In the GPL'd case, if you disregard the terms of the license,
> you can still keep, use, etc. You can *not* copy it,
> distribute it, or modify it tough.

You can, so long as you don't increase the number of copies. This is a
right under first sale.

>  >>So, no, when you get a WinXP CD from Microsoft, you have
>  >>absolutely *no* rights to create derivative works. If a
>  >>person creates a 

Re: (DRAFT) FAQ on documentation licensing

[Francesco Poli]

On Wed, 13 Apr 2005 16:14:23 +0200 Jacobo Tarrio wrote:

>  This should be useful for people who ask about the GFDL, documentation
> licensing guidelines, etc.

Thanks for doing this job!  :)

> 
>  Comments, additions, removals, rewordings are allowed and requested. There
> are no invariant parts ;-)

Of course!  ;-)
ROTFL!

> 
>  When/if it becomes more or less stable, it would be useful for the DFSG
> FAQ, I think...

I agree.

[...] 
>  A: The DFSG is a set of minimum criteria that are taken into account
>  when
> deciding if a particular copyright license is free or not.

I would prefer "if a particular /work/ is free or not."

[...]
>  A: See the previous question. Even if it doesn't convince you or you
>  can
> live with the ambiguity described there, the existence of different
> DFSG and DFDG would mean that there are some freedoms that are
> necessary for programs but are irrelevant for documents, and vice
> versa, as will be exemplified in the following questions.

I would add "Nobody has yet provided a convincing rationale to explain
*why* programs and documents should need a different minimum set of
freedoms. The Debian project claims that the same freedoms are important
for both programs and documents."

>  Q: The ability to keep certain parts of a document is essential for
>  some
> kinds of document. For example, RFC or other standards documents
> should not be modifiable. Or a piece may contain the author's opinion
> on something, and nobody should be allowed to represent the author's
> position by modifying that piece.

s/represent/misrepresent/

> 
>  A: First, standards documents should be modifiable: that's how old
> standards are improved and new standards are made. Modifying a copy of
> a standards document, such as a RFC, does not modify the RFC itself.

[Comment] I agree particularly on this and would like to point out that
it's exactly where many people fail to understand our position: they
fail to see the difference between creating a derivative work and
modifying the work itself (and sometimes even modifying the author's
opinions! Hey! How could I do that? I have no hypnotic powers! ;-)

> 
>  If what's really intended is to stop someone from passing a modified
> document as the original, other means can be used, such as trademark
> laws or slander/libel laws already existing in most jurisdictions.

Perhaps it's better avoiding recommending trademarks or otherwise we
should be prepared to see more and more Mozilla-like mess in the
future...  :-(

[...]
>  It is the same situation in a program. For example, if the license of
>  a
> "kill all spiders" game forbade to make versions with cats instead of
> spiders (because the authors love cats while they loathe spiders),
> this license would be considered non-free, even when it would be
> protecting the authors' own opinions.

[Comment] Good example. My favorite one is the following: if the license
of a MUA forbade to add HTML mail support (because the authors are
philosophically against HTML mail), this license would be considered
non-free, even when it would be protecting the authors' own opinions.


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Re: (DRAFT) FAQ on documentation licensing

[Francesco Poli]

On Wed, 13 Apr 2005 16:56:04 +0100 Andrew Suffield wrote:

> On Wed, Apr 13, 2005 at 04:14:23PM +0200, Jacobo Tarrio wrote:
> > Of course, a copy of the GNU Emacs manual printed on dead trees
> > is
> > unequivocally documentation,
> ^
> You mean 'not software'. It's always documentation; in softcopy form
> it happens to be software as well (and since it's written in info, it
> probably qualifies as a program).

I'm not convinced: a copy of the GNU Emacs manual printed on paper is
still software, just like the source (or even the binary in hexadecimal)
of a program printed on paper. It's information that may be processed by
a computer system: it's just stored on an unpractical physical support
(paper).

The manual on paper is obviously documentation as well.

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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Sean Kellogg]

On Wednesday 13 April 2005 03:09 pm, Raul Miller wrote:
> > > On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
> > > > Failure to have a click-through license means that there is no
> > > > acceptance, which is a fundamental part of contract law.  No
> > > > acceptance, no contract, no exceptions.
> >
> > On Wednesday 13 April 2005 06:55 am, Raul Miller wrote:
> > > False.
> > >
> > > For example, you can indicate acceptance of the GPL by exercising the
> > > rights it grants.
>
> On Wed, Apr 13, 2005 at 10:07:09AM -0700, Sean Kellogg wrote:
> > While I certainly appriciate the simplicity with which you view the
> > law, I'm going to have to stand by my earlier comment and restate,
> > once again, that the authors of the GPL claim it is NOT a contract,
> > but rather a grant/license.
>
> [1] Examples and counter-examples can be simple.  But please don't
> pretend that they cover all issues.

Sounds like a reasonable request.

> [2] I don't think you can construe this paraphrase of the GPL authors
> claims as meaning that a person using that grant is free to ignore the
> conditions imposed by the GPL.

Not quite sure what you mean hear...  but I do know that a grant cannot impose 
active conditions.  If the active conditions are enforceable, then they need 
to be in a contract.  If my grant says "you can do X, but only if you do Y" 
then it it is a contrct.  If, instead, my grant says "you can do X, but not 
Y" then its less a condition and more that I reserved Y from the list of 
rights I gave you, so its not a contract.  The issue with the GPL is that 
waving right to warrenties is like saying "you can do X, but only if you do 
Y", which is a contract.

> [3] You might want to take a look at Richard B. Johnson's post (he posted
> it a couple hours before you posted your message).

Mr. Johnson's construction of the law regarding contracts of adhesion is 
wrong.  I wish it wasn't the case, and I think there are good policy reasons 
for adopting Mr. Johnson's opinion, but the courts have consistently ruled 
the click through license are not contracts of adhesion.  You'll have to 
address further concerns to your local legislator.

Additionally, I don't think we get anywhere with the statement that "some 
jurisdictions look at it differently."  This is always going to be the case, 
and if we dwelled on it for too long the whole of open source software would 
be swallowed by lawyers trying to write exceptions for each and every 
jurisdiction.  All I can do is tell you what I believe the U.S. law is on a 
subject matter.

> > That questions falls to a matter of agency law, not contract law.
> > Same goes for your installation of software on behalf of your dad.
> > When you clicked that agree button, you did so as his agent and he will
> > be liable.
>
> But I didn't click that agree button.
>
> He got his system with software pre-loaded.  Or, the neighbor installed
> it for him.
> 
> If someone entered into a contract on Dad's behalf, and did not
> disclose the contract to him, they are probably liable instead of Dad.
> For example, if the EULA prevents resale of the software, and Dad
> decides to sell the computer at a garage sale, I doubt he would be in
> any danger of prosecution.  There would be no evidence whatsoever that
> Dad had entered into a contract to not sell that part of the system.

Agency law says otherwise.  If I instruct my neighbor to install software then 
I am instructing that neighbor to consent on my behalf.  If the neighbor 
installs the software without my permission, and yet I have reason to know 
that he installed the software, then I may still be liable (this is to cover 
the employer who knows his employees are violating EULAs and doing nothing 
about it).  The only clear case is when it was without my permission and I 
had no reason to know it was installed.  But once I know, I am under a duty 
to figure out what happened and do something about it.

Preinstalled software, if I had to take a guess, probably comes with a 
contractual agreement that you are said to have agreed to when you buy the 
thing.  Although I bet you have the right to return all of that software if 
you don't agree.

> In any event, it's not always the case that the existence of click-through
> license means that a user has accepted the license.

Thats right, if I can manage to install the software without seeing the 
license, then I can probably get out of it.  This is why the technology 
requiring the click to actually happen is getting better and better.

-- 
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Francesco Poli]

On Wed, 13 Apr 2005 01:53:43 -0400 Raul Miller wrote:

> The definitions overlap.
[...]
> But collective works that have their own copyright are derivative
> works, and derivative works that have more than one original work are
> collective works.

Thanks for the clarification.
In its light, I'm coming to the following conclusion:

 US copyright  italian author's right ("diritto d'autore italiano")
 --
 compilation work  <--->   collective work ("opera collettiva")
 derivative work   <---> creative elaboration ("elaborazione creativa")

In the USA, a compilation work is a collective work has its own copyright and 
thus is also a derivative work.

I hope to get it right... or am I confused?

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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Raul Miller]

> > On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
> > > Failure to have a click-through license means that there is no
> > > acceptance, which is a fundamental part of contract law.  No acceptance,
> > > no contract, no exceptions.

> On Wednesday 13 April 2005 06:55 am, Raul Miller wrote:
> > False.
> >
> > For example, you can indicate acceptance of the GPL by exercising the
> > rights it grants.

On Wed, Apr 13, 2005 at 10:07:09AM -0700, Sean Kellogg wrote:
> While I certainly appriciate the simplicity with which you view the
> law, I'm going to have to stand by my earlier comment and restate,
> once again, that the authors of the GPL claim it is NOT a contract,
> but rather a grant/license.

[1] Examples and counter-examples can be simple.  But please don't
pretend that they cover all issues.

[2] I don't think you can construe this paraphrase of the GPL authors
claims as meaning that a person using that grant is free to ignore the
conditions imposed by the GPL.

[3] You might want to take a look at Richard B. Johnson's post (he posted
it a couple hours before you posted your message).

> Now, I've said it before, and I'll probably say it again, lots of
> reasonable minds differ as to whether the GPL is actually a contract
> or not.  But if it is a contract then we need to start looking at
> acceptance by performace.  Did the party who failed to make explicit
> acceptance act in a way as if he did accept?

I agree.

> With the GPL that's a pretty easy to sustain...  the limitations on the
> average user of GPL code is that they give up their right to a warranty.
> As long as they don't claim otherwise, I can't see how they could act
> contrary to the GPL.  If you are a developer/distributor, now you NEED
> to have agreed to the contract in order to exercise certain rights under
> the copyright act.  This means you have either accepted the contract
> and given up the right to close the source of your own work, OR, you
> have refused the contract and you are in breach of the copyright act.

The GPL isn't intended to restrict use, so "the average user" isn't
particularly interesting.  It's "the average distributor" who would care
or not care.  (Quote:  "Activities other than copying, distribution
and modification are not covered by this License; they are outside
its scope").

> > Furthermore, the converse is also false: it's quite possible to install
> > software on your machine without clicking on the click-through license.
> > For example, someone else might install it for you.  [You expect my dad
> > to figure out how to install anything?]
> 
> Its an unclear area of law, in my opinion.  If you install an illegal
> version of Adobe Photoshop on your employers computer are they liable?

I was talking about cases where the user had legally obtained the
software.

> That questions falls to a matter of agency law, not contract law.
> Same goes for your installation of software on behalf of your dad.
> When you clicked that agree button, you did so as his agent and he will
> be liable.

But I didn't click that agree button.

He got his system with software pre-loaded.  Or, the neighbor installed
it for him.

If someone entered into a contract on Dad's behalf, and did not
disclose the contract to him, they are probably liable instead of Dad.
For example, if the EULA prevents resale of the software, and Dad
decides to sell the computer at a garage sale, I doubt he would be in
any danger of prosecution.  There would be no evidence whatsoever that
Dad had entered into a contract to not sell that part of the system.

In any event, it's not always the case that the existence of click-through
license means that a user has accepted the license.

-- 
Raul


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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Pedro A.D.Rezende]

Sean Kellogg wrote:
On Wednesday 13 April 2005 06:55 am, Raul Miller wrote:
On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
Failure to have a click-through license means that there is no
acceptance, which is a fundamental part of contract law.  No acceptance,
no contract, no exceptions.
False.
For example, you can indicate acceptance of the GPL by exercising the
rights it grants.

While I certainly appriciate the simplicity with which you view the law, I'm 
going to have to stand by my earlier comment and restate, once again, that 
the authors of the GPL claim it is NOT a contract, but rather a 
grant/license.  Now, I've said it before, and I'll probably say it again, 
lots of reasonable minds differ as to whether the GPL is actually a contract 
or not.  
This question pertains also to legal definitions that may differ among 
distinct jurisdictions. For exemple, AFAIK under Brazil's legal 
tradition any licence is a contract, a software user license classified 
as atipical and/or as "of adherence" (contrato de adesão). Furthermore, 
licences such as there GPL are better categorized as "beneficial 
contracts" (contrato benéfico), to avoid restrictions regarding 
"adherence" contracts.

But if it is a contract then we need to start looking at acceptance 
by performace.  Did the party who failed to make explicit acceptance act in a 
way as if he did accept?


--

Prof. Pedro Antonio Dourado de Rezende  /\
Ciencia da Computacao (61)3072702-212  /  \
Universidade de Brasilia, DF, Brasil  /\
?http://www.cic.unb.br/docentes/pedro/sd.htm

Re: (DRAFT) FAQ on documentation licensing

[Jacobo Tarrio]

O Mércores, 13 de Abril de 2005 ás 11:10:00 -0600, doug jensen escribía:

> > nobody should be allowed to represent the author's position by modifying
> Should "represent" be changed to "misrepresent"?

 Oh, yeah. Oops :-)

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Re: (DRAFT) FAQ on documentation licensing

[Jacobo Tarrio]

O Mércores, 13 de Abril de 2005 ás 17:56:11 +0100, Andrew Suffield escribía:

> I've written this four times in the past week, so it belongs in a
> FAQ. Something along these lines should be included:

 Done. Now you can start just pasting URLs [1] :-)

==
[1] http://jacobo.tarrio.org/Documentation_licensing_FAQ

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Re: (DRAFT) FAQ on documentation licensing

[doug jensen]

On Wed, Apr 13, 2005 at 04:14:23PM +0200, Jacobo Tarrio wrote:
> be modifiable. Or a piece may contain the author's opinion on something, and
> nobody should be allowed to represent the author's position by modifying
> that piece.

Should "represent" be changed to "misrepresent"?

--  
Doug Jensen


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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Sean Kellogg]

On Wednesday 13 April 2005 06:55 am, Raul Miller wrote:
> On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
> > Failure to have a click-through license means that there is no
> > acceptance, which is a fundamental part of contract law.  No acceptance,
> > no contract, no exceptions.
>
> False.
>
> For example, you can indicate acceptance of the GPL by exercising the
> rights it grants.

While I certainly appriciate the simplicity with which you view the law, I'm 
going to have to stand by my earlier comment and restate, once again, that 
the authors of the GPL claim it is NOT a contract, but rather a 
grant/license.  Now, I've said it before, and I'll probably say it again, 
lots of reasonable minds differ as to whether the GPL is actually a contract 
or not.  But if it is a contract then we need to start looking at acceptance 
by performace.  Did the party who failed to make explicit acceptance act in a 
way as if he did accept?

With the GPL that's a pretty easy to sustain...  the limitations on the 
average user of GPL code is that they give up their right to a warranty.  As 
long as they don't claim otherwise, I can't see how they could act contrary 
to the GPL.  If you are a developer/distributor, now you NEED to have agreed 
to the contract in order to exercise certain rights under the copyright act.  
This means you have either accepted the contract and given up the right to 
close the source of your own work, OR, you have refused the contract and you 
are in breach of the copyright act.

> Furthermore, the converse is also false: it's quite possible to install
> software on your machine without clicking on the click-through license.
> For example, someone else might install it for you.  [You expect my dad
> to figure out how to install anything?]

Its an unclear area of law, in my opinion.  If you install an illegal version 
of Adobe Photoshop on your employers computer are they liable?  That 
questions falls to a matter of agency law, not contract law.  Same goes for 
your installation of software on behalf of your dad.  When you clicked that 
agree button, you did so as his agent and he will be liable.

-Sean

-- 
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

Re: (DRAFT) FAQ on documentation licensing

[Andrew Suffield]

On Wed, Apr 13, 2005 at 04:14:23PM +0200, Jacobo Tarrio wrote:
>  Q: Why are the DFSG applied to documentation? There should be some "Debian
> Free Documentation Guidelines" (DFDG) to be applied to documents instead of
> the DFSG.
> 
>  A: See the previous question. Even if it doesn't convince you or you can
> live with the ambiguity described there, the existence of different DFSG and
> DFDG would mean that there are some freedoms that are necessary for programs
> but are irrelevant for documents, and vice versa, as will be exemplified in
> the following questions.

I've written this four times in the past week, so it belongs in a
FAQ. Something along these lines should be included:


If you want to propose an alternate set of guidelines for some subset
of the works in Debian, here's what you need to do:

 - Write them. Most people never manage this part.

 - For each license restriction permitted by your new guidelines that
   isn't permitted by the DFSG, answer the following three questions:

 1) How do we distinguish between packages where it should and
should not be allowed?

 2) Why should it be allowed in for these packages?

 3) Why should it not be allowed in for every other package?

   Note that the answers to (2) and (3) should not involve special
   pleading or otherwise be contradictory. "Because it's
   documentation" is not a valid answer, and the answer to (3) should
   not apply to the packages in question.

-- 
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Re: (DRAFT) FAQ on documentation licensing

[Roger Leigh]

-BEGIN PGP SIGNED MESSAGE-
Hash: SHA1

Andrew Suffield <[EMAIL PROTECTED]> writes:

> On Wed, Apr 13, 2005 at 04:14:23PM +0200, Jacobo Tarrio wrote:
>> Of course, a copy of the GNU Emacs manual printed on dead trees is
>> unequivocally documentation,
> ^
> You mean 'not software'. It's always documentation; in softcopy form
> it happens to be software as well (and since it's written in info, it
> probably qualifies as a program).

I'd make that a "definitely", since you can run it directly through
TeX, and all of the "@" commands are in fact TeX macros (from
texinfo.tex).


- -- 
Roger Leigh
Printing on GNU/Linux?  http://gimp-print.sourceforge.net/
Debian GNU/Linuxhttp://www.debian.org/
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Re: (DRAFT) FAQ on documentation licensing

[Jacobo Tarrio]

O Mércores, 13 de Abril de 2005 ás 16:56:04 +0100, Andrew Suffield escribía:

> > Of course, a copy of the GNU Emacs manual printed on dead trees is
> > unequivocally documentation,
> ^
> You mean 'not software'. It's always documentation; in softcopy form
> it happens to be software as well (and since it's written in info, it
> probably qualifies as a program).

 Yes, that's what I meant. I left it [1] as "definitely not software" :-)

==
[1] http://jacobo.tarrio.org/Documentation_licensing_FAQ [2]
[2] It doesn't have "DRAFT" in the URL but it does in the text.

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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Richard B. Johnson]

< Not copied to the overloaded linux-kernel list >
On Wed, 13 Apr 2005, Raul Miller wrote:
On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
Failure to have a click-through license means that there is no acceptance,
which is a fundamental part of contract law.  No acceptance, no
contract, no exceptions.
False.
For example, you can indicate acceptance of the GPL by exercising the
rights it grants.
Furthermore, the converse is also false: it's quite possible to install
software on your machine without clicking on the click-through license.
For example, someone else might install it for you.  [You expect my dad
to figure out how to install anything?]
--
Raul

Fundamental to contract law is an agreement.
If there is no agreement, there is no contract.
For a contract to even exist, the parties involved
must have, at least at some time, agreed upon
the exact specified contract, not something
similar, but the exact specifications. To keep
these specifications precisely known by all
parties, they usually establish a written
contract. Written contracts are easier to defend
than others, but verbal, or even implied contracts
are no less valid.
For instance, if you purchase a screw-driver, there
is an implied contract called "fitness of use". It
should be useful for manipulating screws. If it
isn't, then the seller has the obligation to
return the buyer's money if the buyer returns the
screw driver. Just because the screw-driver was
designed for manipulating screws, does not bind
the purchaser to that use. The purchaser can use
the screw-driver as a pry-bar or a chisel. However,
any warranty is not implied for such use.
A computer program that forces, or by use of
coercion, requires a purchaser to "agree" to
some terms of use cannot establish a valid
contract. If you can't complete the installation
of the program unless you abide by some terms
shown in some menu, then some courts have
held that any implied contract is invalid because
one can't be forced to agree and have that
agreement represent a contract.
That's why so-called "employment contracts" where
a prospective employee is forced to sign some
paper or he doesn't get the job, are considered
unenforceable (read invalid).
It's very simple. The usual implied contract
of a purchased product is that the user pays
money and, in return, the user gets to use the
product.
Many software companies have attempted
to corrupt this by requiring the user to
agree to additional terms after the user has
left the store with the knowledge that he
is now free to use the product for which he
paid.
Such an agreement is coerced and, therefore,
cannot represent a valid contract. Further,
one is never required to use the software for
its intended purpose just like you don't really
need to use a screw-driver on screws.
Lawyers make money by writing obfuscating contracts
and then attempting to enforce or defend against
them. Again, just because there is some stuff
in a software screen that you have to "click-
through", doesn't mean that it has any validity
at all.
When studying Law, one must realize that there
are no absolutes, unlike mathematics. One court
may hold one view of a law and another may
hold a completely different view. Even when
actions are moved out of the local courts and
into federal courts, the results of these
actions are not always predictable. Judges
often want to make "new law", often rejecting
case law.
For a good book on US Computer Software Law
I suggest "THE LAW OF COMPUTER TECHNOLOGY"
Raymond T. Nimmer. ISBN 088712-355-4. There is
a beginning section on Copyright Law. For instance,
on page 1-16 ; "...the distinction between idea
and expression in flowcharts and source code is
uncertain. As a practical matter, the distinction
indicates that copyright is not a viable protection
for the author of a program in these forms."
Cheers,
Dick Johnson
Penguin : Linux version 2.6.11 on an i686 machine (5537.79 BogoMips).
 Notice : All mail here is now cached for review by Dictator Bush.
 98.36% of all statistics are fiction.
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Re: (DRAFT) FAQ on documentation licensing

[Andrew Suffield]

On Wed, Apr 13, 2005 at 04:14:23PM +0200, Jacobo Tarrio wrote:
> Of course, a copy of the GNU Emacs manual printed on dead trees is
> unequivocally documentation,
^
You mean 'not software'. It's always documentation; in softcopy form
it happens to be software as well (and since it's written in info, it
probably qualifies as a program).

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(DRAFT) FAQ on documentation licensing

[Jacobo Tarrio]

 This should be useful for people who ask about the GFDL, documentation
licensing guidelines, etc.

 Comments, additions, removals, rewordings are allowed and requested. There
are no invariant parts ;-)

 When/if it becomes more or less stable, it would be useful for the DFSG
FAQ, I think...



 Q: Why does Debian apply the DFSG to the GFDL (and other licenses)?

 A: The DFSG is a set of minimum criteria that are taken into account when
deciding if a particular copyright license is free or not. Everything that
is distributed by Debian in its "main" distribution must be free, so the
DFSG are the criteria to be applied.



 Q: But the GFDL (and other licenses) are not software licenses, but
documentation licenses. Software and documentation are not the same thing.

 A: Even if by "software" you mean "programs", there's not always a
clear-cut distinction between programs and electronic documents. For
example, a Postscript file may contain the full text of the GNU Emacs manual
(that is a document), but it is really a program which is interpreted by
Postscript-capable printers to render that text on paper. Other examples
include literate programming (a style of writing programs in which what is
really written is an essay about how a program works, with code snippets) or
javadoc-like documentation embedded in program source code.

Of course, a copy of the GNU Emacs manual printed on dead trees is
unequivocally documentation, but Debian doesn't distribute physical goods,
so this example is irrelevant to the question.



 Q: Why are the DFSG applied to documentation? There should be some "Debian
Free Documentation Guidelines" (DFDG) to be applied to documents instead of
the DFSG.

 A: See the previous question. Even if it doesn't convince you or you can
live with the ambiguity described there, the existence of different DFSG and
DFDG would mean that there are some freedoms that are necessary for programs
but are irrelevant for documents, and vice versa, as will be exemplified in
the following questions.



 Q: The ability to keep certain parts of a document is essential for some
kinds of document. For example, RFC or other standards documents should not
be modifiable. Or a piece may contain the author's opinion on something, and
nobody should be allowed to represent the author's position by modifying
that piece.

 A: First, standards documents should be modifiable: that's how old
standards are improved and new standards are made. Modifying a copy of a
standards document, such as a RFC, does not modify the RFC itself.

 If what's really intended is to stop someone from passing a modified
document as the original, other means can be used, such as trademark laws or
slander/libel laws already existing in most jurisdictions.

 In other words, one should be allowed by the license to write a document
derived from RFC 2822 and titled "New proposed extensions to SMTP", or a
document titled "A layperson's comments on the GNU Manifesto" which was made
by modifying the GNU Manifesto itself.

 It is the same situation in a program. For example, if the license of a
"kill all spiders" game forbade to make versions with cats instead of
spiders (because the authors love cats while they loathe spiders), this
license would be considered non-free, even when it would be protecting the
authors' own opinions.



 Q: The authors of a document or a literary work deserve to be credited.
They should be able to add a restriction to the license so that their
names must be displayed prominently on the front cover. Shouldn't such a
license be considered free?

 A: Debian would normally consider free a license that mandated that the
name of the authors appear "along with other credits" or something like
that. Specifying the form the credit must take, or its exact wording, or
where it must appear, are restrictions that aren't generally considered
free. Additionally, they have some problems of their own. For example,
how do you display a name prominently on the front cover of a text file? Or
what if someone makes a compilation of texts; should all names appear
prominently on the front cover?

Also, authors of programs deserve to be credited as well, and similar
restrictions have already considered non-free. For example, a license
that says that a three-screen credits text must appear on startup would be
unacceptable.

-- 
   Jacobo Tarrío | http://jacobo.tarrio.org/


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GFDL redux, all over again, yet another time

[Raul Miller]

While looking up laws this morning, to answer a question someone asked
about the GFDL, I noticed something:  17 USC 1201 grants the copyright
holder the right to authorize that technological measures be bypassed.

The current GFDL trys to prevent any distribution of GFDLed documents
where technological measures may restrict access to the work.  In part,
this is probably because anyone can apply such technological measures,
without needing authorization from the copyright holder.

Anyways, for debian's purposes authorization to bypass does us a lot
more good than denying license to those who use measures.

[1] Authorization doesn't run afould of the DFSG.

[2] Authorization makes legit cracking software of any DRM code
used to publish the work.

Our current approach has been rather combative, and rather ineffective.
"The GFDL has these problems, please fix them".  I think, instead, we
should offer solutions to each of the problems, and ask that the GFDL
be modified to allow works to be published in a way that satisfies us.

[Once we have that, we can contact authors individually and ask them to
use the satisfactory terms.]

[I have some ideas about further alternatives for some of the other
problematic clauses in the GFDL, but they're not as good as this one.
But the approach seems valid.]

Thanks,

-- 
Raul


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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Raul Miller]

On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
> Failure to have a click-through license means that there is no acceptance, 
> which is a fundamental part of contract law.  No acceptance, no
> contract, no exceptions.

False.

For example, you can indicate acceptance of the GPL by exercising the
rights it grants.

Furthermore, the converse is also false: it's quite possible to install
software on your machine without clicking on the click-through license.
For example, someone else might install it for you.  [You expect my dad
to figure out how to install anything?]

-- 
Raul


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RE: non-free firmware in kernel modules, aggregation and unclear copyright notice.

[Bodo Eggert]

On Tue, 12 Apr 2005, David Schwartz wrote:

> > > > The EULA is irrelevant in germany and in many parts of the USA.
> 
> > >   Really? I was under the impression EULA's were routinely
> > > upheld in the USA.
> > > If you have any references for that, I'd love to hear them.
> 
> > http://www.freibrunlaw.com/articles/articl22.htm
> 
>   This wasn't a copyright case. The court only refused to uphold the
> agreement because there was no oppurtunity to review the agreement before
> purchase. So it certainly wouldn't apply to a click-through type agreement.

So you can review click-through-licenses before buying the product?

-- 
Funny quotes:
32. "I am" is reportedly the shortest sentence in the English language.
Could it be that "I do" is the longest sentence?
Friß, Spammer: [EMAIL PROTECTED] [EMAIL PROTECTED]

Re: [Fwd: Re: Bug#304316: section non-free/doc]

[Glenn Maynard]

On Wed, Apr 13, 2005 at 11:24:51AM +0400, Olleg Samoylov wrote:
> License of documents in gnu-standards restrict modification documents. 
> And reason easily undestanded, standard can't be called standard if can 
> be modified by everyone.
> *snip*

(response is addressed to the list, not the poster)

Repeat #507.  Does anyone happen to remember a good, concise archived reply
to these oft-repeated arguments?  (The responses are standard: modifying
standards is useful and acceptable, no practical line can be drawn
between documentation and programs, no solid arguments for why the DFSG
*shouldn't* apply to everything in Debian have been given, and the
rest of it.)  This stuff has been argued to death so many times, I'm not
even sure where to start looking, but linking these posts to two or three
previous responses is probably a better bet than responding to the old
arguments all over again.

-- 
Glenn Maynard


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Re: [Fwd: Re: Bug#304316: section non-free/doc]

[Don Armstrong]

On Wed, 13 Apr 2005, Olleg Samoylov wrote:
> License of documents in gnu-standards restrict modification
> documents. And reason easily undestanded, standard can't be called
> standard if can be modified by everyone.

That's why it's sensible to have a standard signed with a known PGP
key so the veracity of the standard can be verified by anyone. The use
of licensing mechanisms to do this isn't necessary when there are
perfectly valid technical mechanisms to do it. [Furthermore, it's not
like anyone who would maliciously modify a standards document would be
stopped by copyright...]

> IMHO incorrect implement DFSG to any documentation due to DFSG is
> "Debian Free _Software_ Guidelines" and designed especially for
> software. However restriction of modification documents correlate
> with "Integrity of The Author's Source Code" in DFSG.

[snip]

> Can you resolve such weakness and add "Debian Free Document
> Guidelines" to Debian Policy?

This has already been discussed ad naseam. Please read through the
list archives regarding documentation as software in -legal. (Hint:
there are thousands of messages on this very subject itself.)

To briefly sumarize[1] the issues facing separating documentation and
software:

1) No one has been able to definitively disambiguate software and
documentation.[2]

2) No one has put forward a set of freedoms that documentation needs
to preserve.

3) No one has set forth a rationale of why some freedoms which we find
necessary for software are not necessary for the documentation for
that software.


Feel free to work at resolving these questions if you have decided
that documentation[3] needs fundamentally different freedoms than
software.


Don Armstrong

1: Inasmuch as I can summarize, since I have rather well known views
on this subject, and am not an impartial observer.

2: The only real definition I'm aware of has been very much akin to
the USSC definition of pornography: "I know it when I see it."

3: Whatever that is.
-- 
Frankly, if ignoring inane opinions and noisy people and not flaming
them to crisp is bad behaviour, I have not yet achieved a state of
nirvana.
 -- Manoj Srivastava in [EMAIL PROTECTED]

http://www.donarmstrong.com  http://rzlab.ucr.edu


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[Fwd: Re: Bug#304316: section non-free/doc]

[Olleg Samoylov]

Hi all.
License of documents in gnu-standards restrict modification documents. 
And reason easily undestanded, standard can't be called standard if can 
be modified by everyone.

IMHO incorrect implement DFSG to any documentation due to DFSG is 
"Debian Free _Software_ Guidelines" and designed especially for 
software. However restriction of modification documents correlate with 
"Integrity of The Author's Source Code" in DFSG.

Precedent "Copyright of the Linux Filesystem Standard (FSSTND)". 
Distributed in package debian-policy, section main. Quote:

The following restrictions apply to reproducing or transmitting the
document in any form:
   o No portion of this document may be redistributed in any modified or
 abridged form without the prior approval of the FSSTND coordinator.
Any entities seeking permission to distribute any material derived
from this document (other than verbatim copies) must contact the
FSSTND coordinator for the appropriate license.
End quote. As I can undestand this license prevent modifing standard. 
And anyone must request "the appropriate license" to modify.

Can you resolve such weakness and add "Debian Free Document Guidelines" 
to Debian Policy?

 Original Message 
Subject: Re: Bug#304316: section non-free/doc
Date: Tue, 12 Apr 2005 12:24:57 -0400
From: Simon Law <[EMAIL PROTECTED]>
To: Olleg Samoylov <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
References: <[EMAIL PROTECTED]>
On Tue, Apr 12, 2005 at 01:44:01PM +0400, Olleg Samoylov wrote:
Package: gnu-standards
Version: 2005.03.08
Severity: minor
Packet in section: non-free/doc.
But license in /usr/share/doc/gnu-standards/copyright is free.
I'm afraid that the GNU Free Documentation License is not DFSG-free.
This is why we have moved the GNU coding and makefile standards to
non-free/doc.
I'm also afraid that the Maintainers' Guide also has a non-free license,
even by the FSF's admission.  This is why we have moved that document to
non-free/doc.
Simon


smime.p7s
Description: S/MIME Cryptographic Signature