Date: Thu, 04 Apr 2002 21:45:56 -0800 From: Terry Lambert <tlambert2@mindspring.com> To: "Gary W. Swearingen" <swear@blarg.net> Cc: chat@FreeBSD.ORG Subject: Re: Hold Harmless (was: Anti-Unix Site Runs Unix) Message-ID: <3CAD3A14.3C5ED003@mindspring.com> References: <20020402113404.A52321@lpt.ens.fr> <3CA9854E.A4D86CC4@mindspring.com> <20020402123254.H49279@lpt.ens.fr> <009301c1da83$9fa73170$0a00000a@atkielski.com> <15530.6987.977637.574551@guru.mired.org> <3CAAAA98.E9D7EBE6@mindspring.com> <b8vgb8679z.gb8_-_@localhost.localdomain> <3CAB69B8.2817604E@mindspring.com> <wjn0wj5lly.0wj@localhost.localdomain> <3CACFDE5.7EB9FECA@mindspring.com> <g2y9g23i8j.9g2@localhost.localdomain>
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"Gary W. Swearingen" wrote: > I doubt if even the DMCA can bind you to the terms of a license > contract which doesn't exist. The text does, but the contract > doesn't if the user of the code has never seen the text. Your > items of consideration only help make the point, because the > user has not indicated acceptance of the disclaimer; he doesn't > even need to do that to accept the license. > > It's a good guess that the DMCA requires some kind of clear notice > to downloaders before the downloading of no-cost software will be > considered illegal. But I guess I need to read the DMCA. Argh. Yep. You need to read it. It makes "shrink wrap" licenses valid, which means that you can put them inside the box, and are bound by it because you opened the box, whether you read the license or not. Whether this is insane or not is irrelevent, so long as it is the law. > > The question is whether there are deep pockets behind that. > > That accounts for the lack of huge numbers of suits, but not > for the absense of them, methinks. I don't think Open Source is being used everywhere people think it is; for where it's being used, I think people are adding to it and thereby creating derivative works, for which they are predominantly responsible. > > Yes. Like the consideration that you not use my name in > > advertising, or the consideration that you hold me harmless. > > For the purposes of the argument, yes, like that; but not even such > low-value consideration is involved in the "running" of PD or BSDL'd (or > GPL'd) software (assuming the DMCA doesn't forbid it). For PD, that's true... that's the whole point, really: there is no contract, therefore there is no hold harmless. This is because even though you have stuck a notice on it, the access to the code is not subject to the consideration of compliance with the license. PD, by definition, doesn't have contingent access. > > No. The BSD license *specifically* states: > > > > The Regents of the University of California. All > > rights reserved. > > > > This includes use and performance rights. 8-). > > There are no such rights FOR SOFTWARE in the 17USC106 "Exclusive > rights..." list and I've read quite a bit on the subject and have never > seen anyone show any evidence for such rights for software. The FSF, > for instance, is clear to note that the GPL doesn't cover "use". The > BSDL's mention of "use" is moot, AFAIK. No. The GPL incorrectly uses the word "use" when they mean "utilize". > There isn't even an exclusive copy right, for the "use" case covered by > 17USC117 (http://www4.law.cornell.edu/uscode/17/117.html) which is > widely interpreted as "running" the software. It's widely interpreted wrong. "Use" is as in "use in the preparation of a derivative work". > > Mississipi and Missouri both have appelate level rulings > > that uphold the validity of shrink wrap licenses; I have > > I've seen it (or something similar), but I don't see why it matters. Because the decision was made at the apellate level, which means that it's legally binding on inferior courts, and they are not permitted to rule in contradiction to the decision on future cases involving the same point of law. > I'm just theorizing that such licenses are probably necessary (in the > absence of a signed contract) to give a disclaimer most of the legal > effect desired because only such licenses can restrict the running of > a copy of software (with its attendant damage potential). This is the problem with the understanding. The licenses are the only things that *permit*. By default, Copyright restricts all use and utilization. This is because installation requires copying (for traditional installation; it would be interesting to see whether a bootable CDROM is considered "copying into memory"... it would also be interesting to see if such loading into memory constitutes "first use" or subsequent use; the backup provisions only apply to "first use"). > > > [...] There are many arguments I won't go into why it is wrong to hold > > > PD publishers to a higher standard than prorietary publishers and I > > > believe that courts have acknowledged a similar concept in their > > > mentions of "consideration" in contract cases. > > > > There is no higher standard. There is only a preponderance of > > evidence. > > Your mention of the higher standard is what started this thread. You > said something to the effect that people have to keep software > proprietary so their disclaimer has legal merit, implying that their > disclaimer on PD software has no (or less) legal merit. I call that > a higher standard for PD software. Maybe it isn't the best term. No... it's not. A "higher standard" is where there is differential treatment based on membership, or the lack thereof, in a select group. You've implied it, but not said it outright: The "higher standard" is a legitimate legal defense against enforcement. Actually, since we are talking civil, rather than criminal, there's no statutory enforcement involved, so there is no opportunity for a higher standard here. I think what you wanted to say is that PD authors should be permitted to obtain equal protection against litigation by disclaiming warranties and fitness. The answer is: they are not entitled to disclaim them without a contract, in which the recipient permits them to disclaim them as part of the consideration. This is why, in order to encourage PD works, there needs to be special consideration in the law to implicitly disclaim, by default, such things which are normally reasonably and customarily disclaimed. You *might* be able to get away with something like: "Subject to the following conditions, this code is placed in the public domain" I don't think that this would work, in practice, however, since "Public Domain" has special legal meaning. By making your placement in the public domain subject to terms, you are implying a contract with all of society, which I don't think you can do, even if the DMCA were found to be fully enforcible. THis is the interpretation that RIAA and MPAA is trying to enforce with DVD and the DMCA. > But I think both cases are essentially the same regarding a disclaimer > for 17USC117 "use" because both may be legally obtained and "used" > without ever even seeing the disclaimer. Either both are at significant > legal risk, or neither are mostly because of the lack of or low value of > consideration or for practical/sociological reasons. You have to read the code in order to prepare a derivative work. I think your claim might be correct, with regard to binaries. However, the UCBL requires that the license notice accompany distribution for the distribution to be legal, so one can argue that it's legally contingent on the acceptance of the license by the recipient, and that enforcement of acceptance is the responsibility of the distributor. The GPL fails a bit in this regard, in that it attempts to enforce against distribution of binaries as a seperate class, while at the same time permitting derivative works. the problem is, again, in their use of the word "use" rather than the word "utilize". If you feel incredibly strongly about it, you're always welcome to engage in a test case. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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