[oclug] And another thing

[Brad Barnett]

On 21 Nov 2003 00:27:59 -0500
Milan Budimirovic <milan.budimirovic at sympatico.ca> wrote:

> On Thu, 2003-11-20 at 22:16, Brad Barnett wrote:
> > On 20 Nov 2003 21:59:18 -0500
> > Milan Budimirovic <milan.budimirovic at sympatico.ca> wrote:
> > 
> > > On Thu, 2003-11-20 at 08:06, Greg wrote:
> > > > Milan Budimirovic wrote:
> > > > > An article on InfoWorld (who should know better than to
> > > > > regurgitate this sort of thing)
> > > > > 
> > > > >   http://www.infoworld.com/article/03/11/19/HNgplthreatens_1.html
> > > > > 
> > > > > If the lawsuits weren't bad enough in themselves, now SCO is
> > > > > positioning itself as a poster child for victims of Intellectual
> > > > > Property theft.
> > > > 
> > > > Not in the article you cite, McBride does not promote SCO as
> > > > victim of
> > > > 
> > > > anything -- more as a successful white-knight.
> > > > 
> > > 
> > > Well, it was a speech at Comdex, guaranteed to be on the front page
> > > of every major IT news site on the Net. He's definitely trying to
> > > garner sympathy... Also note his (likely) bogus claims about his
> > > life being threatened.
> > > 
> > 
> > ROTFL.. now I _have_ to read this article. ;)
> > 
> 
> The alleged death threats were in a separate article. I don't have the
> URL, but it was posted on LinuxToday.
> 
> 
> > 
> > An EULA and the GPL are not the same animal.  The GPL works because if
> > you do not agree to the terms, you are restricted to standard
> > copyright law. Standard copyright law, of course, is much more
> > restrictive than the GPL, and the GPL only give additional rights, it
> > does not take them away.  In other words, the GPL generally does not
> > conflict with standard copyright law in any way.  I have had previous
> > discussions about how the GPL in some rare cases _can_ conflict with
> > copyright law, but this is understandable when it is working with
> > hundreds of different versions of said law around the globe.
> > 
> > EULAs, however, are not even enforceable here in Canada unless signed
> > before delivery of the product takes place.  They are an agreement
> > that is _more_ restrictive than copyright law, and claims to override
> > it. However, since you do not accept until _after_ the transaction
> > takes place, they are not binding.  You have already purchased the
> > product under standard rules of purchase and copyright law.  Someone
> > can not force acceptance of a contract _after_ purchase.
> > 
> > EULAs have been found non-enforceable in several US courts even, most
> > recently with a gentleman reselling a product that claimed transfer of
> > ownership was not permissible.
> > 
> > In short, the GPL and EULAs have no dependance upon each other. 
> > > 
> 
> Well, they're both based on the premise that copyright law allows the
> author of the software to dictate its terms of use. And that is the only
> thing that matters.

No!  An EULA is not based upon the above premise!  An EULA is based upon
the premise that you can dictate and enforce contractual obligations
_after_ a consumer has purchased the product.  This is a fallacy here,
but seems partially enforceable in the US.  Keep in mind that until the
DMCA and other laws came into effect in the US, EULAs were non-enforcable
and on unstable ground as well.  That was one of the main points of the
DMCA, legislation we have not seen here yet.  (Yes, the DMCA had other
points, but this one indeed one of them.  An acceptance of EULA agreements
with click through for acceptance.  Even so, again, some US courts have
even overruled this foolishness.)

An EULA is _not_ based upon the fact that copyright law allows the author
of the software to dictate terms of use.  Such clauses exist _no where_ in
Canadian copyright law.  Terms of use are dictated _by_ copyright law,
there are no extensions allowing the software author to allow additional
restrictions.

Now, there have been limited cases in Canadian court history where
copyright authors of works have been able to enforce certain restrictions
via court.  For example, an artist that has a piece of work being
displayed in a very harmful (to the artist) manner.

However, such cases as these have no reasonable linkage to software
"licences".

> Having a EULA overturned because of contract or consumer protection law
> is not nearly as catastrophic as having a court say, "copyright law says
> you can't put these restrictions in." Because copyright law is the very
> thing that allows you to "license" the code in the first place. And the

Copyright law does not give the author the right to force licensed code,
what so ever, in Canada.  Anyone that uses a GPL license does so because
they want to, not because they have to.  That is, people have two choices.
Copyright law or GPL.  The same is true of EVERY SINGLE EULA agreement
that the consumer in Canada is forced to click "I AGREE" to _after_ the
purchase for said software product has been made.

EULA operates on a fallacy here, and is non-enforceable for entirely
different reasons.

> GPL places very few restrictions on use of the software, compared with
> the average shrinkwrap license. Overturn the GPL and the whole house of
> cards comes tumbling down, potentially.

I completely and totally disagree.  These beasts are completely and
totally different.  One is enforcable _worldwide_ because copyright law is
the only alternative (GPL), the other attempts to circumvent and remove
rights from consumers without the legal backing to do so (EULA agreements)
in most nation states worldwide.  Again, such laws are enforceable in the
US now, due to clauses in the DMCA.

Still, contrary to what the Evil Empire to the South would have you
believe, the US is not the world.