Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wednesday 13 July 2005 10:32 pm, Glenn Maynard wrote: On Wed, Jul 13, 2005 at 10:07:49PM -0700, Sean Kellogg wrote: I'm talking about copyright infringement. Maybe I'm the only one?! The question is whether its okay to mandate acceptance of the GPL at download. I am suggesting that you have to agree to it in order to avoid copyright infringement. Hence, if you have to agree the GPL to copy it off the server in the first place, a click-wrap license is no more non-free than just simply attacting the license as part of the COPYING file. No, the question is whether it's free to mandate *explicit*, click-through acceptance of the GPL at (download, install, whatever) time. (The question of whether it's acceptable to mandate agreement to a contract at all, and whether the GPL does so, is unrelated.) There's a world of difference between 1: requiring that a person agree to something, but allowing that agreement to be expressed implicitly, through conduct (eg. by doing something which only the license allows), and 2: requiring that a person (and all recipients of the program from that person, and so on) indicate his agreement by displaying the license and refusing to install unless a button is clicked. #2 is what's in question, and requiring #2 is infinitely more invasive and problematic than #1. I don't know how you can keep claiming that #1 == #2; they have nothing in common. I am so confused. #1 allows a licensor to impose all manner of terms without giving actual notice to the licensee, whereas #2 at least gives the licensee a chance. The warranty provisions are a great example. The GPL rejects all implied warranties, but doesn't tell a licensee it does so unless they go to the trouble of reading the COPYING file. How does displaying the license first and requiring folks say yes, I understand more problematic or invasive? Believe me, I understand the visceral reaction to click-wrap licenses. I have had a lot of debates with law professors on the issue of whether click-wrap licenses are a good thing since they postpone term presentation until far after money has changed hands. But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: On Wednesday 13 July 2005 05:10 pm, Rich Walker wrote: Given that Debian is a global distribution, perhaps your question should reference something other than local law? I checked '106(1) rights' on Google, and it appears to be a US legal concept. As far as the other 6.1 billion of us go, what is our position? Umm... you'll excuse me for only being a trained expert on one set of copyright laws. Foolish me for only spending $30,000 to be trained in US law. If others want to contribute non-US law, but all means, but I'm only going to speak to what I have knowledge in. And you'll excuse me for not being a trained expert on any. :-) But if you are fortunate, as I am, to live in a country where the rule of law is not a total fiction, then you can probably get access to the primary literature -- rulings issued by courts with appellate jurisdiction. That concept is by no means unique to common law countries; it goes back at least to Pontius Pilate's day and has modern analogues from Iran to Irkutsk. As Rich posted from .uk, he needn't go so far afield; recent appellate decisions are available at http://www.hmcourts-service.gov.uk/HMCSJudgments/Search.do . Looks to me like appeals in copyright infringement cases are generally heard in the High Court of Justice, Chancery Division. Picking the first such case that comes to hand (Fraser-Woodward v. BBC), I observe precedents drawn also from the Queen's Bench, the Australian Court system, and a couple of other appellate courts, as well as the relevant statutes; I see no obvious equivalent to Nimmer on Copyright (the standard US secondary source), but there probably is one, if you like having Virgil handy when visiting the Inferno. Anyway, my point is that reading the law for yourself is fun and easy, once you have straight the distinction between the primary literature (appellate decisions and the occasional lower court decision that they cite as being particularly persuasive) and all of the rest (statutes included; interpreting them without reference to the judicial record is a mug's game). Learn your local legal lingo, watch out for precedents that have since been overruled by a higher court or replaced by new legislation, and whatever you do hire a real lawyer if you are ever so unfortunate as to wind up in court. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: I don't think that first-sale and digital goods maps very well... I'm really uncertain as to how the courts have fallen on the issue. I don't see how first sale authorizes me to download (and hence make a copy) of source code to which I don't have permission to copy. Basically, because special-casing electronic delivery to put the onus of acquiring copyright license on the recipient instead of the distributor is stupid; and a good judge tries to avoid obviously stupid conclusions unless the legislature or a higher court forces them on her. US circuit courts, surprisingly enough, are sometimes brave enough to do the right thing even when the stupid practice is already common in the industry or a sister court has already suffered a lapse; hence decisions like Specht v. Netscape, Fosson v. Palace Waterland, and Walthal v. Corey Rusk. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: I am so confused. #1 allows a licensor to impose all manner of terms without giving actual notice to the licensee, whereas #2 at least gives the licensee a chance. The warranty provisions are a great example. The GPL rejects all implied warranties, but doesn't tell a licensee it does so unless they go to the trouble of reading the COPYING file. How does displaying the license first and requiring folks say yes, I understand more problematic or invasive? Click-wrap that isn't trivial to circumvent is a sysadmin's nightmare (what kind of crap-ass software can't be updated site-wide without screenscraping GUI macro magic?) and it's not smart to require it where it's not necessary. If you can get people to behave decently with respect to the temptation to steal more than the vendor is offering, you don't need to club them with FUD. The statutory penalties for copying without license on a commercial scale are pretty steep, and the principal benefits of publication under the GPL can be tied quite satisfactorily to that need for license when modifying and/or copying. There's no sane boundary between making warranty disclaimers (practically legal no-ops at the retail level) binding and allowing enforcement of arbitration clauses on people who just intended to purchase a retail good or even pick up a free newspaper (which is surely bad public policy). So if your concerns relate to the body of the GPL rather than things that have to be hung on a right-to-use hook, why futz around with click-wrap? Believe me, I understand the visceral reaction to click-wrap licenses. I have had a lot of debates with law professors on the issue of whether click-wrap licenses are a good thing since they postpone term presentation until far after money has changed hands. But no one has presented a cogent argument about how mandating that people actually agree to the terms of the GPL poses a threat to the DFSG. It's not allowable under GPL section 6, it's inconvenient for important categories of users, and it's just plain stupid to do package-by-package anyway. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sunday 10 July 2005 09:53 pm, Glenn Maynard wrote: On Sun, Jul 10, 2005 at 05:51:17PM -0700, Sean Kellogg wrote: Glenn, don't you think he's talking about technologically impractical. We all know how easy it is to circumvent click wrap licenses. But you HAVE to agree to the GPL to download the software, click wrap or not, so its not really impractical from a freedom sense. Technically impractical *is* non-free. Marco believes, as far as I understand (from past messages), that a license requiring technically mpractical things as conditions for basic freedoms is free. A you must send 250 redundant copies of the source along with binaries, to make sure that the recipient gets at least one intact is technically impractical; a Linux distribution with two discs of source would have to ship five hundred. I hope such a restriction is clearly non-free. Yeah, your example makes sense because it requires you to do more than is required under the GPL (a violation of the GPL itself). But agreeing to the terms of the GPL is not an additional requirement ontop of the GPL. The gobbly gook in Section 5 of the GPL is, I would suggest, mostly unenforceable... part of the you can't say something is X when its actually Y and expext it to be treated as X doctrine. Its just like work for hire stuff, you can't declare it's a work for hire when its not. In response to an earlier suggestion, whether the GPL covers actions beyond modification and distribution... my copy of the GPL says, in section 1, that I have the right to make copies of code as I receive it. Now that is certainly interesting language. If I am given a copy of the software on CD by someone who agrees to the GPL, then it would seem I'm fine to keep the CD and do whatever even if I vigorously reject the GPL. Fair enough... but when I run 'apt-get', am I the one doing the copying or is the distributor doing the copying? I could really see it going either way but certainly if I come upon someone's computer, burn code to a CD on my own, I am engaged in copying. And, like I said before, the only thing that gives you the right to copy is the GPL, which means you have to agree to it. So why does an author's decision to display those terms when you first install or to call it a License Agreement (desperate attempt to return to subject) violate the GPL or the DFSG? -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, 13 Jul 2005 20:49:42 -0400 Glenn Maynard wrote: I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? #1 is why is the Napster downloader guilty; I don't have an answer #to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). The sender might, after all, have had a license to redistribute. Mmmmh, let me analyse things in a different scenario. Suppose that A is the *copyright holder* and distributes his/her work through a web server. Suppose that the work is proprietary with no license at all (All Rights Reserved). A practical example could be some proprietary mp3 music files that are downloadable from the record company's website (say for promotional purposes). B finds the work while surfing the web and downloads it. The work is undistributable: B cannot redistribute to anyone else. Nor B can prepare derivative works or distribute them to anyone else. But B does *not* perform any of these operations. B has simply downloaded and (privately) enjoyed the work. In the above example, J. Random Headbanger downloads and listens to the mp3 music files. But he does nothing else with them. Is there any copyright infringement in this scenario? I would say no, there isn't any. If this is correct: why do I need a license to download a GPL'd work, if J. Random Headbanger does not need any to download proprietary music? -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpZeYx2VQt5b.pgp Description: PGP signature
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Thursday 14 July 2005 03:21 pm, Francesco Poli wrote: On Wed, 13 Jul 2005 20:49:42 -0400 Glenn Maynard wrote: I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? #1 is why is the Napster downloader guilty; I don't have an answer #to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). The sender might, after all, have had a license to redistribute. Mmmmh, let me analyse things in a different scenario. Suppose that A is the *copyright holder* and distributes his/her work through a web server. Suppose that the work is proprietary with no license at all (All Rights Reserved). A practical example could be some proprietary mp3 music files that are downloadable from the record company's website (say for promotional purposes). B finds the work while surfing the web and downloads it. The work is undistributable: B cannot redistribute to anyone else. Nor B can prepare derivative works or distribute them to anyone else. But B does *not* perform any of these operations. B has simply downloaded and (privately) enjoyed the work. In the above example, J. Random Headbanger downloads and listens to the mp3 music files. But he does nothing else with them. Is there any copyright infringement in this scenario? I would say no, there isn't any. If this is correct: why do I need a license to download a GPL'd work, if J. Random Headbanger does not need any to download proprietary music? Possibly... I really don't know. I think the question is worth exploring. I don't think that Specht v. Netscape is helpful here because it was a contract relating to terms outside of copyright and had a whole bunch of interesting things wrapped into it. If someone has a clean case out there that says this sort of behavior isn't copying and allowable, please share. -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/14/05, Sean Kellogg [EMAIL PROTECTED] wrote: Possibly... I really don't know. I think the question is worth exploring. I don't think that Specht v. Netscape is helpful here because it was a contract relating to terms outside of copyright and had a whole bunch of interesting things wrapped into it. If someone has a clean case out there that says this sort of behavior isn't copying and allowable, please share. Dude, that whole copyright-based license thing is a delusion. The GPL is an offer of contract, which is the only way that a copyright license can be conveyed. Even an license implied through conduct, as in Fosson v. Palace Waterland and Jacob Maxwell v. Veeck, is an implied contract-in-fact. The whole of contract law is applicable to it. Specht is about what it takes to demonstrate acceptance in the absence of traditional meeting of the minds, and you're unlikely to find analysis more precisely on point than its Secton III: Whether the User Plaintiffs Had Reasonable Notice of and Manifested Assent to the SmartDownload License Agreement. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/12/05, Sean Kellogg [EMAIL PROTECTED] wrote: When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. Specht v. Netscape. Napster case is irrelevant. I can't find anything to disagree with in any of Glenn's contributions in this thread. IANAL and all that. Cheers, - Michael
RE: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
First, my apologies for top posting... I'm using Outlook at the moment (shudder) and can't for the life of me figure out how to get the old text properly indented. So this is the best I can do. As for Specht V. Netscape, Michael, I know you are a smart guy who is good with citations; it boggles me that you would reference this case. This case deals with the enforceability of click-wrap licenses, with particular attention to forced arbitration clauses. It doesn't get to copyright infringement at all, which is my point with the GPL and its binding nature. There is one reference to a 'browse wrap' case in Specht where an individual was sued because he took information off of a website in violation the site's license. The court found that license unenforceable... big surprise. But there is still an action under copyright law, the guy got off because of bad lawyering. Absent written consent you can't transfer (s)106 rights under the law. I haven't had a chance to look at the GPL after Glenn's last post (hopefully tonight), but the operative question here, and one that your skills with citations seems well suited to, is figuring out the following question: If individual A is authorized to distribute software, and individual B initiates an action that results in a copy being made of that software from A's distribution server, has B violated the original author's 106(1) rights? Or, as I believe Glenn is suggesting (and may be right... question is really interesting) does the grant to distribute authorize B to give others the right to copy in the process of distribution? If Glenn is wrong, and a downloader does not agree to the GPL, then it seems to me the downloader has no right to retain a copy of the software. -Sean -Original Message- From: Michael K. Edwards [mailto:[EMAIL PROTECTED] Sent: Wednesday, July 13, 2005 1:34 PM To: Sean Kellogg Cc: debian-legal@lists.debian.org Subject: Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract. On 7/12/05, Sean Kellogg [EMAIL PROTECTED] wrote: When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. Specht v. Netscape. Napster case is irrelevant. I can't find anything to disagree with in any of Glenn's contributions in this thread. IANAL and all that. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: As for Specht V. Netscape, Michael, I know you are a smart guy who is good with citations; it boggles me that you would reference this case. This case deals with the enforceability of click-wrap licenses, with particular attention to forced arbitration clauses. It doesn't get to copyright infringement at all, which is my point with the GPL and its binding nature. We are not talking about copyright infringement, we are talking about standards of acceptance through conduct when an end user picks up a browse-wrapped freebie. The free newspaper analogy in Specht is a good one, and the opinion is generally quite articulate about the basis for drawing a line between click-wrap and browse-wrap. Click-wrapping the GPL is of course insane, i. e., inconsistent with its plain terms about acceptance and unlikely to survive construction against the offeror. If the person doing the click-wrapping is not the sole copyright holder on the contents, it may also be a violation of the covenant in GPL Section 6 not to impose any further restrictions on the recipients' exercise of the rights granted herein. If individual A is authorized to distribute software, and individual B initiates an action that results in a copy being made of that software from A's distribution server, has B violated the original author's 106(1) rights? Or, as I believe Glenn is suggesting (and may be right... question is really interesting) does the grant to distribute authorize B to give others the right to copy in the process of distribution? B is not doing the copying. A is doing the copying. In the scenario you describe, B simply doesn't ever have more than one copy in her possession, modulo the fuzz factor implied by 17 USC 117 and common sense. If A uses a distribution technique for free newspapers that delays the making of additional copies (in a copyright sense) until end users request them, that is not B's problem. I have not seriously researched the C-facilitates-B's-download-from-A case, which is basically a form of deep linking; compare http://www.netlitigation.com/netlitigation/linking.htm . If Glenn is wrong, and a downloader does not agree to the GPL, then it seems to me the downloader has no right to retain a copy of the software. Compare Bobbs-Merrill v. Straus ( http://laws.findlaw.com/us/210/339.html ), the case in which the doctrine of first sale (now 17 USC 109(a)) was first enunciated: quote The wholesale dealers, from whom defendants purchased copies of the book, obtained the same either directly from the complainant or from other wholesale dealers at a discount from the net retail price, and, at the time of their purchase, knew that the book was a copyrighted book, and were familiar with the terms of the notice printed in each copy thereof, as described above, and such knowledge was in all wholesale dealers through whom the books passed from the complainants to defendants. But the wholesale dealers were under no agreement or obligation to enforce the observance of the terms of the notice by retail dealers, or to restrict their sales to retail dealers who would agree to observe the terms stated in the notice. /quote Electronic distribution is different in that it puts publishers, wholesale dealers, and retail dealers into the same boat. They all make copies, not just handle them, and they all need to accept some copyright license, either formally or through conduct -- unless they want to be stuck arguing equitable estoppel, which the GPL puts them in no real position to do, even if its drafters promote theories about it that are arrant nonsense. End users are not in that boat, nor is anyone who merely handles copies on physical media. While in some sense a retail dealer could (as I have argued previously) construct a scheme for handling electronic copies that circumvents GPL acceptance, I would expect most judges to frown on that. (Do I hear faint echoes of la la la from other threads?) Cheers, - Michael (IANAL, TINLA)
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Michael K. Edwards [EMAIL PROTECTED] wrote: Click-wrapping the GPL is of course insane ... Er, that is, it's IMHO silly to argue that click-wrapping the GPL makes some stray anti-patent term binding on people on whom it would otherwise not be, and insane to compound the error by trying to prevent recipients from undoing the click-wrap. I've got to be more careful with those strong judgments about the mental state of hypothetical people ... Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 08:31:37PM -0700, Sean Kellogg wrote: When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. Sorry, but this analogy does not hold water. Debian has a license to distribute the packages in its archives. Most of the people using Napster didn't. This is an important distinction. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/12/05, Adam McKenna [EMAIL PROTECTED] wrote: I have seen software that has a click-thru GPL before. I can't remember offhand what the software was, but Ive definitely seen it. Cygwin / MinGW setup.exe, for instance, IIRC. Cheers, - Michael
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, Jul 13, 2005 at 03:14:22PM -0700, Adam McKenna wrote: On Tue, Jul 12, 2005 at 08:31:37PM -0700, Sean Kellogg wrote: When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. Sorry, but this analogy does not hold water. Debian has a license to distribute the packages in its archives. Most of the people using Napster didn't. This is an important distinction. I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? #1 is why is the Napster downloader guilty; I don't have an answer to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). The sender might, after all, have had a license to redistribute. Michael answered #2. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/13/05, Glenn Maynard [EMAIL PROTECTED] wrote: #1 is why is the Napster downloader guilty; I don't have an answer to that (though I believe that's only due to my poor understanding of copyright law, and not evidence supporting Sean's argument). As I see it, the Napster downloader isn't guilty of direct infringement; the uploader is. But note that the appellate court split the responsibility differently: quote Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights. /quote This would make the distribution _precede_ the copying, which is IMHO bizarre. But as far as I can tell (IANAL) that's dicta anyway because it makes no difference to Napster's culpability which one is the direct infringer. The Napster injunction was upheld due to the likelihood of success of vicarious liability and/or contributory infringement claims a la Gershwin v. Columbia. Napster both induces, causes or materially contributes to the infringing conduct of another (contributory infringement) and has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities (vicarious liability). Now, suppose that the mechanics are such that the uploader is the only one infringing directly. Still, assuming that uploader and downloader have colluded in the making of copies that they both know to be unlicensed, there is no difficulty in finding vicarious liability on the downloader's part, which allows recovery of the penalties for direct infringement from the party that benefits. You have fraudulent intent, you have conversion, you have conspiracy; that's more than enough. The degree of conspiracy and fraudulent intent that can be ascribed to the downloader is a lot higher than that involved in accidentally buying a counterfeit CD -- but note that it may not be safe to make even that mistake too often (though penalties greater than confiscation seem unlikely). None of this is relevant to browse-wrap situations where the distributor has authority to make copies and distribute them without obtaining formal acceptance of a license. I don't see how the theory that a downloader accepts through conduct a single-use copyright license, as a hook on which to hang an RTU without a minimal click-through standard of meeting of the minds, can survive Specht. Cheers, - Michael (IANAL, TINLA)
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
Sean Kellogg [EMAIL PROTECTED] writes: If individual A is authorized to distribute software, and individual B initiates an action that results in a copy being made of that software from A's distribution server, has B violated the original author's 106(1) rights? Or, as I believe Glenn is suggesting (and may be right... question is really interesting) does the grant to distribute authorize B to give others the right to copy in the process of distribution? Given that Debian is a global distribution, perhaps your question should reference something other than local law? I checked '106(1) rights' on Google, and it appears to be a US legal concept. As far as the other 6.1 billion of us go, what is our position? cheers, Rich. -- rich walker | Shadow Robot Company | [EMAIL PROTECTED] technical director 251 Liverpool Road | need a Hand? London N1 1LX | +UK 20 7700 2487 www.shadow.org.uk/products/newhand.shtml -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, Jul 13, 2005 at 08:49:42PM -0400, Glenn Maynard wrote: I think what he's saying is roughly: 1: if A has no license to distribute the software, puts it on a server, and B downloads it, why is B guilty of copyright infringement if it's A who lacked a license to distribute; or 2: why is B *not* guilty of copyright infringement if A has a license to distribute but B does not? I don't think it's been universally agreed upon whether B is infringing or not. Has anyone who has *only* downloaded music been convicted under federal copyright laws? I found an article[1] dated 3/7/05 about a man that was convicted under a *state* law which prohibits possession of counterfeit marks, or unauthorized copies of intellectual property, and the article claims that he is the first person in the country to be convicted just for downloading. --Adam [1] http://www.usatoday.com/tech/news/techpolicy/2005-03-07-az-teen-downloader-convicted_x.htm -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wednesday 13 July 2005 02:40 pm, Michael K. Edwards wrote: On 7/13/05, Sean Kellogg [EMAIL PROTECTED] wrote: As for Specht V. Netscape, Michael, I know you are a smart guy who is good with citations; it boggles me that you would reference this case. This case deals with the enforceability of click-wrap licenses, with particular attention to forced arbitration clauses. It doesn't get to copyright infringement at all, which is my point with the GPL and its binding nature. We are not talking about copyright infringement, we are talking about standards of acceptance through conduct when an end user picks up a browse-wrapped freebie. The free newspaper analogy in Specht is a good one, and the opinion is generally quite articulate about the basis for drawing a line between click-wrap and browse-wrap. I'm talking about copyright infringement. Maybe I'm the only one?! The question is whether its okay to mandate acceptance of the GPL at download. I am suggesting that you have to agree to it in order to avoid copyright infringement. Hence, if you have to agree the GPL to copy it off the server in the first place, a click-wrap license is no more non-free than just simply attacting the license as part of the COPYING file. Click-wrapping the GPL is of course insane, i. e., inconsistent with its plain terms about acceptance and unlikely to survive construction against the offeror. If the person doing the click-wrapping is not the sole copyright holder on the contents, it may also be a violation of the covenant in GPL Section 6 not to impose any further restrictions on the recipients' exercise of the rights granted herein. If individual A is authorized to distribute software, and individual B initiates an action that results in a copy being made of that software from A's distribution server, has B violated the original author's 106(1) rights? Or, as I believe Glenn is suggesting (and may be right... question is really interesting) does the grant to distribute authorize B to give others the right to copy in the process of distribution? B is not doing the copying. A is doing the copying. In the scenario you describe, B simply doesn't ever have more than one copy in her possession, modulo the fuzz factor implied by 17 USC 117 and common sense. If A uses a distribution technique for free newspapers that delays the making of additional copies (in a copyright sense) until end users request them, that is not B's problem. I have not seriously researched the C-facilitates-B's-download-from-A case, which is basically a form of deep linking; compare http://www.netlitigation.com/netlitigation/linking.htm . I don't see how A is copying. All A is doing is making it available for others to copy. Consider a newspaper salesman. He has newspapers lined up with the headlines available for everyone to see. If a customer approaches and copies down the headlines and what parts of the articles he can see, that person is infringing the copyright... even if the copyright salesman has the right to distribute. And no, (s)117 does not cover this instance. (s)117 relates to use, which is undefined in copyright law, but is definetly unrelated to any of the activities involved in (s)106 rights... like copying and use. If Glenn is wrong, and a downloader does not agree to the GPL, then it seems to me the downloader has no right to retain a copy of the software. Compare Bobbs-Merrill v. Straus ( http://laws.findlaw.com/us/210/339.html ), the case in which the doctrine of first sale (now 17 USC 109(a)) was first enunciated: quote The wholesale dealers, from whom defendants purchased copies of the book, obtained the same either directly from the complainant or from other wholesale dealers at a discount from the net retail price, and, at the time of their purchase, knew that the book was a copyrighted book, and were familiar with the terms of the notice printed in each copy thereof, as described above, and such knowledge was in all wholesale dealers through whom the books passed from the complainants to defendants. But the wholesale dealers were under no agreement or obligation to enforce the observance of the terms of the notice by retail dealers, or to restrict their sales to retail dealers who would agree to observe the terms stated in the notice. /quote Electronic distribution is different in that it puts publishers, wholesale dealers, and retail dealers into the same boat. They all make copies, not just handle them, and they all need to accept some copyright license, either formally or through conduct -- unless they want to be stuck arguing equitable estoppel, which the GPL puts them in no real position to do, even if its drafters promote theories about it that are arrant nonsense. End users are not in that boat, nor is anyone who merely handles copies on physical media. While in some sense a retail dealer could (as I have
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wednesday 13 July 2005 05:10 pm, Rich Walker wrote: Sean Kellogg [EMAIL PROTECTED] writes: If individual A is authorized to distribute software, and individual B initiates an action that results in a copy being made of that software from A's distribution server, has B violated the original author's 106(1) rights? Or, as I believe Glenn is suggesting (and may be right... question is really interesting) does the grant to distribute authorize B to give others the right to copy in the process of distribution? Given that Debian is a global distribution, perhaps your question should reference something other than local law? I checked '106(1) rights' on Google, and it appears to be a US legal concept. As far as the other 6.1 billion of us go, what is our position? Umm... you'll excuse me for only being a trained expert on one set of copyright laws. Foolish me for only spending $30,000 to be trained in US law. If others want to contribute non-US law, but all means, but I'm only going to speak to what I have knowledge in. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, Jul 13, 2005 at 10:07:49PM -0700, Sean Kellogg wrote: I'm talking about copyright infringement. Maybe I'm the only one?! The question is whether its okay to mandate acceptance of the GPL at download. Since the GPL itself does not require you to accept it unless you want to modify or distribute the work or a program based on the work, a requirement that you accept the GPL during a download is effectively imposing an additional restriction and should not be allowed. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Wed, Jul 13, 2005 at 10:07:49PM -0700, Sean Kellogg wrote: I'm talking about copyright infringement. Maybe I'm the only one?! The question is whether its okay to mandate acceptance of the GPL at download. I am suggesting that you have to agree to it in order to avoid copyright infringement. Hence, if you have to agree the GPL to copy it off the server in the first place, a click-wrap license is no more non-free than just simply attacting the license as part of the COPYING file. No, the question is whether it's free to mandate *explicit*, click-through acceptance of the GPL at (download, install, whatever) time. (The question of whether it's acceptable to mandate agreement to a contract at all, and whether the GPL does so, is unrelated.) There's a world of difference between 1: requiring that a person agree to something, but allowing that agreement to be expressed implicitly, through conduct (eg. by doing something which only the license allows), and 2: requiring that a person (and all recipients of the program from that person, and so on) indicate his agreement by displaying the license and refusing to install unless a button is clicked. #2 is what's in question, and requiring #2 is infinitely more invasive and problematic than #1. I don't know how you can keep claiming that #1 == #2; they have nothing in common. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/10/05, Glenn Maynard [EMAIL PROTECTED] wrote: On Sun, Jul 10, 2005 at 11:56:50AM +0200, Marco d'Itri wrote: Maybe impractical, but so far I can't see why they should be non-free. Now you're claiming that an impractical license can be free? I think your notion of what is free is so patently absurd that I can't be bothered to argue with you--we require the freedom to modify and distribute, but license restrictions that make those freedoms impractical to exercise are fine! Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. If you're wanting to take issue with Marco's agreement with your position that the click-wrap method of accepting a license is impractical, please keep in mind that the method by which a user agrees to a license has nothing to do with the contents of that license. I'm unclear how on the one hand you can say they are impractical (click-wrap licenses) and then call absurd someone's agreement with that contention. Can you please clarify this disconnect? -- Chris With the way things are starting to go in this country, if forced to choose between being caught with a van full of pirated DVDs or heroin you'd actually have to pause and think about it. -- Michael Bell, drunkenblog.com
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 08:39:35AM -0500, Christofer C. Bell wrote: Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. Chris, a click-wrap license allowing redistribution would contain a clause requiring that distributors put recipients through a click-wrap as well. That *is* license contents; it's a specific and onerous restriction on redistribution. That would not only require that apt-get install display and confirm licenses, but also apt-get source, and would probably prohibit anonymous CVS and source tarballs on anonymous FTP entirely. If click-wrap is desired, then the copyright holder wants explicit (not implicit, by conduct) agreement, and click-wrap would be required by the license at every place the software is distributed. I'm unclear how on the one hand you can say they are impractical (click-wrap licenses) and then call absurd someone's agreement with that contention. Can you please clarify this disconnect? It's absurd to say that a license is impractical, and to cliam in the same breath that the license is free. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 02:53:40PM -0400, Glenn Maynard wrote: On Tue, Jul 12, 2005 at 08:39:35AM -0500, Christofer C. Bell wrote: Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. Chris, a click-wrap license allowing redistribution would contain a clause requiring that distributors put recipients through a click-wrap as well. It *could* contain such a clause.. If it did, then it would be non-free for that reason. If the redistributor was free to remove the click-wrap license, then as long as it met other requirements of DFSG, it could be considered free. I have seen software that has a click-thru GPL before. I can't remember offhand what the software was, but Ive definitely seen it. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 12:52:03PM -0700, Adam McKenna wrote: On Tue, Jul 12, 2005 at 02:53:40PM -0400, Glenn Maynard wrote: On Tue, Jul 12, 2005 at 08:39:35AM -0500, Christofer C. Bell wrote: Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. Chris, a click-wrap license allowing redistribution would contain a clause requiring that distributors put recipients through a click-wrap as well. It *could* contain such a clause.. If it did, then it would be non-free for that reason. If the redistributor was free to remove the click-wrap license, then as long as it met other requirements of DFSG, it could be considered free. If the redistributor is free to distribute the software without click- wrapping people, then it's not a click-wrap license. If a copyright holder wants people to have to explicitly agree to their terms to use their software, then they have to either forbid redistribution or require that redistribution also get explicitly agreement. I have seen software that has a click-thru GPL before. I can't remember offhand what the software was, but Ive definitely seen it. That's not a click-wrap license, it's just the GPL stuffed into a dialog which falsely claims you have to explicitly agree to use the software, and that if you don't click yes, you're not allowed to use it. That's an entirely different case, since you can just repackage it without the click-wrap and it goes away. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tuesday 12 July 2005 01:18 pm, Glenn Maynard wrote: On Tue, Jul 12, 2005 at 12:52:03PM -0700, Adam McKenna wrote: On Tue, Jul 12, 2005 at 02:53:40PM -0400, Glenn Maynard wrote: On Tue, Jul 12, 2005 at 08:39:35AM -0500, Christofer C. Bell wrote: Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. Chris, a click-wrap license allowing redistribution would contain a clause requiring that distributors put recipients through a click-wrap as well. It *could* contain such a clause.. If it did, then it would be non-free for that reason. If the redistributor was free to remove the click-wrap license, then as long as it met other requirements of DFSG, it could be considered free. If the redistributor is free to distribute the software without click- wrapping people, then it's not a click-wrap license. If a copyright holder wants people to have to explicitly agree to their terms to use their software, then they have to either forbid redistribution or require that redistribution also get explicitly agreement. That's not the definition of a click-wrap license. I, as the software developer, can require positive verification that you accept whatever license I so deem and yet allow you to redistribute without such verification. Not entirely sure what the point would be, but it doesn't make it any less a license through which one clicks. I have seen software that has a click-thru GPL before. I can't remember offhand what the software was, but Ive definitely seen it. That's not a click-wrap license, it's just the GPL stuffed into a dialog which falsely claims you have to explicitly agree to use the software, and that if you don't click yes, you're not allowed to use it. That's an entirely different case, since you can just repackage it without the click-wrap and it goes away. Falsely?! Perhaps you ought to study up on contracts a bit. The FSF can say they think the GPL means whatever they want, but under United States law the only people whose opinion count is the offerer and the acceptor. If I say you can't use my GPL'ed software unless you click through the license, then that is what it says. And you still haven't responded to my earlier point that anyone who downloads GPL'ed software must agree to the GPL. A click through license, if nothing else, just informs those downloaders of their rights and responsibilities now that under the license. -Sean -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On 7/12/05, Glenn Maynard [EMAIL PROTECTED] wrote: On Tue, Jul 12, 2005 at 08:39:35AM -0500, Christofer C. Bell wrote: Glenn, you said that click-wrap licenses are impractical and Marco agreed with you. You said nothing about the license contents. Chris, a click-wrap license allowing redistribution would contain a clause requiring that distributors put recipients through a click-wrap as well. That *is* license contents; it's a specific and onerous restriction on redistribution. That would not only require that apt-get install display and confirm licenses, but also apt-get source, and would probably prohibit anonymous CVS and source tarballs on anonymous FTP entirely. If click-wrap is desired, then the copyright holder wants explicit (not implicit, by conduct) agreement, and click-wrap would be required by the license at every place the software is distributed. So what you're saying is not that the contents of the license are the problem, but that fact that the user is required to acknowledge that the license has been displayed to them is the burdensome requirement? Is that right? -- Chris With the way things are starting to go in this country, if forced to choose between being caught with a van full of pirated DVDs or heroin you'd actually have to pause and think about it. -- Michael Bell, drunkenblog.com
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sat, Jul 09, 2005 at 12:14:29PM -0700, Sean Kellogg wrote: Well, like I said... I can't fault your logic. The GPL's use provisions, or more accurately its express disclaimer there of, do not require consent. BUT, everyone has to consent to the GPL when you download a copy of it. By that conduct they are agreeing to the GPL and right along with it, they agree to the warranty disclaimer provisions. The distributor needs permission to redistribute. Every free license I've seen is phrased as permission to distribute, not permission to be distributed to. So, how does downloading the work indicate consent of anything? Why do I, as the recipient, not distributing anything, need a license to receive the work, when the redistributor already has permission to send it? Are you claiming that downloading software is an act of distribution on the part of the downloader, rather than the uploader? If so, that's a new one to me, and I'd be interested in hearing supporting arguments. (That would make the word distributor very confusing.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tuesday 12 July 2005 08:06 pm, Glenn Maynard wrote: On Sat, Jul 09, 2005 at 12:14:29PM -0700, Sean Kellogg wrote: Well, like I said... I can't fault your logic. The GPL's use provisions, or more accurately its express disclaimer there of, do not require consent. BUT, everyone has to consent to the GPL when you download a copy of it. By that conduct they are agreeing to the GPL and right along with it, they agree to the warranty disclaimer provisions. The distributor needs permission to redistribute. Every free license I've seen is phrased as permission to distribute, not permission to be distributed to. So, how does downloading the work indicate consent of anything? Why do I, as the recipient, not distributing anything, need a license to receive the work, when the redistributor already has permission to send it? (1) to reproduce the copyrighted work in copies or phonorecords; When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. Are you claiming that downloading software is an act of distribution on the part of the downloader, rather than the uploader? If so, that's a new one to me, and I'd be interested in hearing supporting arguments. (That would make the word distributor very confusing.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 07:01:25PM -0700, Sean Kellogg wrote: That's not the definition of a click-wrap license. I, as the software developer, can require positive verification that you accept whatever license I so deem and yet allow you to redistribute without such verification. Not entirely sure what the point would be, but it doesn't make it any less a license through which one clicks. A click-wrap license is a license which you have to agree to explicitly, by clicking a button. If I can redistribute the software without requiring that of the recipient, it's not a click-wrap license. (This is a semantic issue, and due to the fact that the vast majority of click-wrap licenses are proprietary and allow no redistribution at all, I think we're both just extrapolating the phrase in slightly different directions.) That's not a click-wrap license, it's just the GPL stuffed into a dialog which falsely claims you have to explicitly agree to use the software, and that if you don't click yes, you're not allowed to use it. That's an entirely different case, since you can just repackage it without the click-wrap and it goes away. Falsely?! Perhaps you ought to study up on contracts a bit. The FSF can say they think the GPL means whatever they want, but under United States law the only people whose opinion count is the offerer and the acceptor. If I say you can't use my GPL'ed software unless you click through the license, then that is what it says. So now you're claiming that I have to explicitly, via click-wrap, signature, etc., agree to the GPL, and that implicit agreement (eg. via conduct) is insufficient? Which clause says that? You can say your license says whatever you want, but that doesn't make it so. (Of course, taking even the clear word of a license over the confused word of a licensee is still not necessarily a good idea, with the only final word being a court, but a random contributor to the Linux kernel can't effectively claim the GPL means you have to send me $100 per system and make it so, forcing everyone to strip out his part of the code or pay up.) And you still haven't responded to my earlier point that anyone who downloads GPL'ed software must agree to the GPL. A click through license, if nothing else, just informs those downloaders of their rights and responsibilities now that under the license. I ignored this because it was assuming consensus about whether agreement is needed to download and use GPL software, and you know that there isn't one; it seemed like you were trying to buy points for your claims by stating them as assumed fact, which is tiresome. In context of this message: a click-through license, where click-through- on-redistribution is mandatory, imposes significant technical hurdles (much more than nothing else). If it's not mandatory, then it's not a freedom issue, and not interesting; remove it and be done with it. (I've pushed this response to a more appropriate subthread.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 08:31:37PM -0700, Sean Kellogg wrote: (1) to reproduce the copyrighted work in copies or phonorecords; When you download something from the deb archives, you create a copy. That copy is not permitted under the copyright act unless you have permission from the owner. If that's not the way you read 106(1), then downloading copyrighted mp3s off napster was legal... and I suggest to you it was not. The GPL's grants certainly aren't written in those terms: 1. You may copy and distribute verbatim copies of the Program's source code as you receive it ... As you receive it (as well as the attached conditions) makes this very clear: it's granting permission to send the software to someone else, and not talking about anyone's permission to receive it. If that permission is also required, then nothing in the GPL grants it. In that case, everyone who has downloaded GPL software has violated copyright, which means there's a flaw in the license. There's just no clause that I can find that a person downloading the software can be argued to have used in doing so. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Tue, Jul 12, 2005 at 10:23:14PM -0500, Christofer C. Bell wrote: So what you're saying is not that the contents of the license are the problem, but that fact that the user is required to acknowledge that the license has been displayed to them is the burdensome requirement? Is that right? Not exactly. Displaying one or two click-wraps isn't (too) onerous. Displaying a hundred is (eg. a Linux distribution). If I port the software to a system with a limited display (eg. an ethernet switch or a wristwatch), click-wrap is impossible. (Normally, I'd just print out the license and include it in the documentation in that case.) The problem is that a click-wrap license (or at least, the kind of click-wrap license I'm concerned with here) would say something like you must ensure that all recipients are displayed this license and click a [yes, I agree] button before sending/installing/running this software, and that's overly burdensome. (Part of the reason this tangent is difficult to discuss is because, as far as I know, there have been no click-wrap licenses posed to d-legal, so we don't have anything concrete to analyze and we're debating entirely in theoreticals. It might be best to shelve this discussion until one comes along.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
[EMAIL PROTECTED] wrote: I think there's wide agreement here that forced click-wrap licenses are non-free, and very impractical. I've seen installers in Windows Maybe impractical, but so far I can't see why they should be non-free. -- ciao, Marco -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sun, Jul 10, 2005 at 11:56:50AM +0200, Marco d'Itri wrote: Maybe impractical, but so far I can't see why they should be non-free. Now you're claiming that an impractical license can be free? I think your notion of what is free is so patently absurd that I can't be bothered to argue with you--we require the freedom to modify and distribute, but license restrictions that make those freedoms impractical to exercise are fine! -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sunday 10 July 2005 03:21 am, Glenn Maynard wrote: On Sun, Jul 10, 2005 at 11:56:50AM +0200, Marco d'Itri wrote: Maybe impractical, but so far I can't see why they should be non-free. Now you're claiming that an impractical license can be free? I think your notion of what is free is so patently absurd that I can't be bothered to argue with you--we require the freedom to modify and distribute, but license restrictions that make those freedoms impractical to exercise are fine! Glenn, don't you think he's talking about technologically impractical. We all know how easy it is to circumvent click wrap licenses. But you HAVE to agree to the GPL to download the software, click wrap or not, so its not really impractical from a freedom sense. -Sean -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sun, Jul 10, 2005 at 05:51:17PM -0700, Sean Kellogg wrote: Glenn, don't you think he's talking about technologically impractical. We all know how easy it is to circumvent click wrap licenses. But you HAVE to agree to the GPL to download the software, click wrap or not, so its not really impractical from a freedom sense. Technically impractical *is* non-free. Marco believes, as far as I understand (from past messages), that a license requiring technically mpractical things as conditions for basic freedoms is free. A you must send 250 redundant copies of the source along with binaries, to make sure that the recipient gets at least one intact is technically impractical; a Linux distribution with two discs of source would have to ship five hundred. I hope such a restriction is clearly non-free. (I find it mind-boggling that anyone would even suggest that requiring a click-wrap is free, and I'm close to throwing my hands in the air in frustration and doing something less maddening for a while, since I feel that suggesting that a you must be eaten by a lion to be allowed to distribute this software license is non-free would meet disagreement.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
Sean Kellogg said on Fri, Jul 08, 2005 at 02:11:24PM -0700,: some on the list, is that the GPL contains certain warranty waiver provisions that cannot be done in a pure license... which means Hmmm there must be a contract and it must be agreed to (in the GPL's case, it is agreed to by conduct). AFAIK, RMS FSF are of view that software under the GPL does not require an `I agree' button. Do not have a link ready on hand right now. Others on this list take a different view, but fail to explain how they avoid the warranty stuff. I doubt if the warranties would be enforced by a reasonable judge enforcing a reasonable legal system against a provider who provides software by anonymous ftp/http and free of cost to boot, and does not know that the plaintiff installed the software. And, if the provider (1) took money *or* (2) knew that the software would be used for a specific purpose; then I doubt any reasonable court enforcing a reasonabl legal system will refuse the plaintiff's claim, if the software indeed did not suit that purpose. (My argument is likely to have holes in exceptional circumstances, but will hold good 99% of the time, and anyway, I am not giving a legal opinion). -- Mahesh T. Pai http://paivakil.port5.com Resistance of the network is directly proportional to the field strength of the intellectual property system. - Moglen's Corollary to Ohlm's Law -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Sat, Jul 09, 2005 at 01:50:27PM +0530, Mahesh T. Pai wrote: AFAIK, RMS FSF are of view that software under the GPL does not require an `I agree' button. Do not have a link ready on hand right now. That's what he means by agreed to by conduct; for example, if the only means you have to redistribute a work is a contract, and you redistribute it, your conduct is (may be, IANAL) indicating agreement to the contract (even though you didn't sign anything or click any buttons). (It's not clear whether that applies here, since you don't need any special license to simply use software, so using the software doesn't seem to indicate agreement to anything; this is the point of Sean's argument I'm trying to understand.) I think there's wide agreement here that forced click-wrap licenses are non-free, and very impractical. I've seen installers in Windows requiring an explicit agreement for the GPL; that's just confusion, or maybe people dropping the GPL into a default paste your license here installer template ... -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Saturday 09 July 2005 01:38 am, Glenn Maynard wrote: On Sat, Jul 09, 2005 at 01:50:27PM +0530, Mahesh T. Pai wrote: AFAIK, RMS FSF are of view that software under the GPL does not require an `I agree' button. Do not have a link ready on hand right now. That's what he means by agreed to by conduct; for example, if the only means you have to redistribute a work is a contract, and you redistribute it, your conduct is (may be, IANAL) indicating agreement to the contract (even though you didn't sign anything or click any buttons). (It's not clear whether that applies here, since you don't need any special license to simply use software, so using the software doesn't seem to indicate agreement to anything; this is the point of Sean's argument I'm trying to understand.) Well, like I said... I can't fault your logic. The GPL's use provisions, or more accurately its express disclaimer there of, do not require consent. BUT, everyone has to consent to the GPL when you download a copy of it. By that conduct they are agreeing to the GPL and right along with it, they agree to the warranty disclaimer provisions. I suppose you could say that someone who didn't install it, but came upon the software already installed, is not bound by those agreements... but certainly the first person who apt-get install PACKAGE has consented to the GPL in an agreement like fasion. I think there's wide agreement here that forced click-wrap licenses are non-free, and very impractical. I've seen installers in Windows requiring an explicit agreement for the GPL; that's just confusion, or maybe people dropping the GPL into a default paste your license here installer template ... While VERY off point, how is a click-wrap license non-free? Requiring someone to agree to a license before they use the software doesn't seem to go against any of DFSGs. Obviously what you say IN the license makes a whole heep of difference... but I think that's a far cry from saying mandatory agreement is non-free. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
package kde severity 317359 wishlist thanks ...summarian conclusion: Just remove Agreement from those tabs, leave License on them. ;o) ...subject 'n justification tells the story, further discussion can be found on Groklaw and likely d-legal too, the GPL is a license because it gives a permission to do something, such as distribution, on a certain condition, also distribute the source. I'm sorry, but I find you hard to follow. I find your ideas very far-fetched. Unless the debian-legal crowd agrees that having GPL on a tab called License agreement is serious bug, I plan to close this bug soon. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Fri, Jul 08, 2005 at 02:08:17PM +0300, Riku Voipio wrote: package kde severity 317359 wishlist thanks ...summarian conclusion: Just remove Agreement from those tabs, leave License on them. ;o) ...subject 'n justification tells the story, further discussion can be found on Groklaw and likely d-legal too, the GPL is a license because it gives a permission to do something, such as distribution, on a certain condition, also distribute the source. I'm sorry, but I find you hard to follow. I find your ideas very far-fetched. Unless the debian-legal crowd agrees that having GPL on a tab called License agreement is serious bug, I plan to close this bug soon. Technically he's right. You don't have to accept the GPL unless you intend to distribute the software. So IMHO, the word 'agreement' here is not entirely accurate. I don't think it's worthy of a 'serious' severity, but 'minor' or 'wishlist' likely fits the bill. Either way, it's (IMO again) a legitimate bug, so you shouldn't close it until it's resolved. --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Friday 08 July 2005 04:08 am, Riku Voipio wrote: package kde severity 317359 wishlist thanks ...summarian conclusion: Just remove Agreement from those tabs, leave License on them. ;o) ...subject 'n justification tells the story, further discussion can be found on Groklaw and likely d-legal too, the GPL is a license because it gives a permission to do something, such as distribution, on a certain condition, also distribute the source. I'm sorry, but I find you hard to follow. I find your ideas very far-fetched. Unless the debian-legal crowd agrees that having GPL on a tab called License agreement is serious bug, I plan to close this bug soon. The debian-legal crowd is of several opinions. My own, shared by some on the list, is that the GPL contains certain warranty waiver provisions that cannot be done in a pure license... which means there must be a contract and it must be agreed to (in the GPL's case, it is agreed to by conduct). Others on this list take a different view, but fail to explain how they avoid the warranty stuff. So calling the GPL a License Agreement strikes me as the correct and honest thing. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair c: 206.498.8207 e: [EMAIL PROTECTED] 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
(dropped CC's; it's probably not productive for the actual contract-or-not debates to go to the bug, since we're not likely to come to a firm conclusion anyway) On Fri, Jul 08, 2005 at 02:11:24PM -0700, Sean Kellogg wrote: The debian-legal crowd is of several opinions. My own, shared by some on the list, is that the GPL contains certain warranty waiver provisions that cannot be done in a pure license... which means there must be a contract and it must be agreed to (in the GPL's case, it is agreed to by conduct). Others on this list take a different view, but fail to explain how they avoid the warranty stuff. I don't really follow. I don't need a license to use software that I obtain legally. If I'm not distributing or modifying the work, I'm not using any of the permissions granted by the GPL; I'm not performing any conduct that might indicate agreement merely by using the software. (Even if the popular wisdom that copyright covers copying, not use is no longer entirely true, the second paragraph of 0 explicitly excludes use being covered by the license.) How am I agreeing to anything? Saying the warranty disclaimer is only valid if you agree to it doesn't explain how I've agreed to anything. You're arguing that the warranty disclaimer isn't binding, not that the GPL is a contract. (I won't debate whether warranty disclaimers work that way, since I don't know.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Friday 08 July 2005 02:37 pm, Glenn Maynard wrote: (dropped CC's; it's probably not productive for the actual contract-or-not debates to go to the bug, since we're not likely to come to a firm conclusion anyway) Sounds good to me. On Fri, Jul 08, 2005 at 02:11:24PM -0700, Sean Kellogg wrote: The debian-legal crowd is of several opinions. My own, shared by some on the list, is that the GPL contains certain warranty waiver provisions that cannot be done in a pure license... which means there must be a contract and it must be agreed to (in the GPL's case, it is agreed to by conduct). Others on this list take a different view, but fail to explain how they avoid the warranty stuff. I don't really follow. I don't need a license to use software that I obtain legally. If I'm not distributing or modifying the work, I'm not using any of the permissions granted by the GPL; I'm not performing any conduct that might indicate agreement merely by using the software. (Even if the popular wisdom that copyright covers copying, not use is no longer entirely true, the second paragraph of 0 explicitly excludes use being covered by the license.) How am I agreeing to anything? All true... except you can't put in a legal contract This is X when in fact it is a Y. The law, while often blind, is not that blind. Consider Work for Hire, saying something is a Work for Hire in an employment contract will not make something a Work for Hire, no matter how much both actors may want it to be a Work for Hire. Its a matter of conduct. I suggest the same goes for licenses and contracts. I also agree that copyright doesn't cover use, but use can be controlled via contract, which is why most licenses are actually a combination of license and contract... little bit from column A, little bit from column B. Of course, only license violations carry that nasty statutory damages option. Saying the warranty disclaimer is only valid if you agree to it doesn't explain how I've agreed to anything. You're arguing that the warranty disclaimer isn't binding, not that the GPL is a contract. (I won't debate whether warranty disclaimers work that way, since I don't know.) That's an interesting place to arrive, but I can't fault it logically. You seem to be suggesting it is more advantageous to consider the GPL a pure license, thus negating the warranty disclamers (which must be both conspicuous and agreed to if they are to be binding) thus exposing the author and distributors to potentially billions of dollars in damages, rather than just call the GPL a contract. Strikes me the more advantageous thing to do is say it is a contract where conduct equals consent... but only because it limits the potential liability of authors and distributors. I certainly see the philosophical advantages of having the GPL as a grant that has no acceptance requirements, but you simply cannot disclaim warranties without consent in a state that has adopted the Uniform Commercial Code (which is all of them... although a few of them have made the occasional amendment). -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair 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: Bug#317359: kde: ..3'rd Help-About $KDE-app tab calls the GPL License Agreement, ie; a contract.
On Fri, Jul 08, 2005 at 04:55:30PM -0700, Sean Kellogg wrote: All true... except you can't put in a legal contract This is X when in fact it is a Y. The law, while often blind, is not that blind. Consider Work for Hire, saying something is a Work for Hire in an employment contract will not make something a Work for Hire, no matter how much both actors may want it to be a Work for Hire. Its a matter of conduct. I suggest the same goes for licenses and contracts. I'm not sure what you're disagreeing with, though. The GPL says it doesn't cover use; it goes on to list a bunch of restrictions, and none of them cover use. Is your line of reasoning the only way, in many jurisdictions, the warranty disclaimer could be effective is if it was a condition of use, therefore it is one, and the second paragraph of 0 is completely false? I also agree that copyright doesn't cover use, but use can be controlled via contract I know; that's why I referred to the second paragraph of 0: The act of running the Program is not restricted. I don't know how the warranty disclaimer can be interpreted as a running the program is only allowed if you agree to this warranty disclaimer clause, no matter how preferable it might be, when the license explicitly states that running the program isn't restricted. That's an interesting place to arrive, but I can't fault it logically. You seem to be suggesting it is more advantageous to consider the GPL a pure license, thus negating the warranty disclamers (which must be both conspicuous and agreed to if they are to be binding) thus exposing the author and distributors to potentially billions of dollars in damages, rather than just call the GPL a contract. Strikes me the more advantageous thing to do It seems that this is an expected place for a licensee would arrive, especially combined with the FSF's trumpeting of the GPL is not a contract. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
