Linked by Thom Holwerda on Fri 25th Sep 2009 14:01 UTC
Legal In France, the GPL has scored yet another major win in court. What makes this infringements case special is that it was filed not by the developers of the infringed-upon code, but by users, demonstrating that they, too, can successfully enforce the GPL. Since I noted on a few threads here on OSNews that a lot of people still fail to grasp the difference between an open source license and an EULA, I figured I'd take this opportunity to explain the difference one more time - using hand-crafted diagrams!
Order by: Score:
Nice article.
by SReilly on Fri 25th Sep 2009 14:10 UTC
SReilly
Member since:
2006-12-28

Over simplistic? Indeed but it does a great job pointing out the legal differences between the two contracts. Well done Thom, I'd of never thought of using diagrams.

Reply Score: 2

In a few lines...
by sonic2000gr on Fri 25th Sep 2009 14:16 UTC
sonic2000gr
Member since:
2007-05-20

Let me tell you the difference in just a few lines:

- An EULA is a contract between the user and the company which developed the program. Whether this is applicable or not depends on the region and court case. Most of the times it will not hold up as you have not read it before purchasing the product, nor you have formally agreed to it (a simple keypress does not constitute a signature and there are no witnesses to the fact).

- An open source license on the other hand is not a contract, you do not sign it and you can't even violate it. You simply agree or disagree with it. You can not even be tried for violating it. Since an open source license in reality relieves you from restrictions imposed by the copyright law, if you do not agree with it then these restrictions are not relieved. You will be tried for copyright violation, not licensing violation. Copyright law is mostly similar and enforceable in most countries.

So saying that "GPL held up in court once more" is kind of silly. If you go against GPL, copyright law will get you. So yes, GPL will always "win".

Reply Score: 7

RE: In a few lines...
by alcibiades on Sat 26th Sep 2009 12:07 UTC in reply to "In a few lines..."
alcibiades Member since:
2005-10-12

The reason people try to conflate them seems to be that they would like to make the argument, presumably inspired by Cupertino marketing, that if Apple loses it will in some way negatively affect the GPL. In fact, it will not, and for the reasons given in the above post, one (GPL) is a matter of statutory law, copyright law.

The other (EULA) is a civil contract you have entered into with a supplier, whose terms may or may not be enforceable in your jurisdiction.

If Apple wins or loses, it will be on the EULA issue, and it will have no effect whatever on the GPL. So there is no reason to support Apple's case on acount of any worries about the GPL.

It is a bit like if I fail to pay my mortgage and get sued, if I win or lose, this will not affect the enforceability of the law on speed limits. Yes, the two things are that unrelated!

Reply Score: 2

Correction
by Moulinneuf on Fri 25th Sep 2009 14:27 UTC
Moulinneuf
Member since:
2005-07-06

1. BSD is a protection clause, not a license.

You have to be the owner of the entire code to apply a license to the code, or have the permission from the owner.

2. There is no "more Permissive" recognition under the law, it's either permissive or it's not. Since BSD is a protection clause it give you no permission at all except the right to use it. It's theorically the owner of the code who allows it.

3. The BSD protection clause grant you no right , the owner of the code under the BSD protection clause do.

4. The BSD protection clause is also copyleft. The original author of BSD intended for it to stay Open to all so as to not get sued by the real UNIX owner.

5. Copyleft is not a restriction, it's a protection.

Do you really believe that company like IBM, Google, Ebay, Amazon, would use anything GPL if it was restrictive ?

Reply Score: 4

RE: Correction
by Thom_Holwerda on Fri 25th Sep 2009 14:31 UTC in reply to "Correction"
Thom_Holwerda Member since:
2005-06-29

Do you really believe that company like IBM, Google, Ebay, Amazon, would use anything GPL if it was restrictive ?


Are you intentionally misreading what I write?

I was very specific to mention that copyleft can ONLY be seen as a restriction from the perspective of the BSD license.

Reply Score: 2

RE[2]: Correction
by Moulinneuf on Fri 25th Sep 2009 15:52 UTC in reply to "RE: Correction"
Moulinneuf Member since:
2005-07-06

License don't have perspective. People do.

Your just giving credence, support, visibility and
condoning the people who illegally steal BSD code, by alluding to/giving them rights that are not in the protection clause, that they can close and be relicensing it and finnaly suggesting they are the only one exclusively who can do it.

The owner of GPL code can also decide to re-license is own code if he is the full owner of it or as the permission from other owners.

Reply Score: 2

RE[3]: Correction
by AdamW on Fri 25th Sep 2009 16:03 UTC in reply to "RE[2]: Correction"
AdamW Member since:
2005-07-06

moulinneuf: here, I got you an early Christmas present - it's a big stick to help you support that gigantic chip on your shoulder. I figured you must be getting tired by now.

Reply Score: 4

RE[4]: Correction
by Moulinneuf on Fri 25th Sep 2009 16:08 UTC in reply to "RE[3]: Correction"
Moulinneuf Member since:
2005-07-06

So your back at Mandriva and they got some budget now ?
Or your just too lazy to update your info ...

Either way you got lawyers who can answer your question :

If your not the owner of the code can you license it ... go ask.

Edited 2009-09-25 16:08 UTC

Reply Score: 1

RE[2]: Correction
by clei on Sat 26th Sep 2009 13:16 UTC in reply to "RE: Correction"
clei Member since:
2008-10-04

"Do you really believe that company like IBM, Google, Ebay, Amazon, would use anything GPL if it was restrictive ?


Are you intentionally misreading what I write?

I was very specific to mention that copyleft can ONLY be seen as a restriction from the perspective of the BSD license.
"

So what exactly was your extremely vapid point in even bringing up this subject?

Reply Score: 0

RE: Correction
by phoenix on Fri 25th Sep 2009 19:04 UTC in reply to "Correction"
phoenix Member since:
2005-07-11

4. The BSD protection clause is also copyleft. The original author of BSD intended for it to stay Open to all so as to not get sued by the real UNIX owner.


I don't know the origin for the phrase (it's old, though), but it just fits so well:

BSD is a copycentre license ... as in take the code down to the copy centre and make as many copies as you want.

Reply Score: 3

Copyright & Licences
by bralkein on Fri 25th Sep 2009 14:31 UTC
bralkein
Member since:
2006-12-20

A lot of people/companies seem to have problems with the GPL when code is used without any understanding of what the GPL requires the developer to do. I think there needs to be more information put around to help people understand the need for caution. If you don't know what licence is used, find out. If you don't understand what the licence means, ask someone. This may involve asking a legal expert. You're only doing yourself a favour at the end of the day when your product doesn't get screwed up because you were blase about copyright issues.

Of course there are many parties around these days seeking to raise awareness of copyright issues but unfortunately this seems to be reduced to a brain-dead yell of "DON'T PIRATE STUFF MMKAY" which sadly will do very little to solve any other problems.

Reply Score: 1

Spot-on
by foldingstock on Fri 25th Sep 2009 14:59 UTC
foldingstock
Member since:
2008-10-30

This was a very nice article, Thom. You did a good job of comparing/contrasting the different licenses.

From the article:

GPL: clear-cut. Abide, or lose in court. EULA: muddy. You never really know where you'll land.

Couldn't agree more.

Reply Score: 1

Comment by lurch_mojoff
by lurch_mojoff on Fri 25th Sep 2009 15:25 UTC
lurch_mojoff
Member since:
2007-05-12

Since I was pretty much the only one arguing this last time, Thom, I guess this post is mainly meant for me. Therefore I'd like to respond. But I've seen that people, especially around here, are bent on believing that EULAs are inherently unfair, especially since it comes with the added bonus to prove that Apple are "teh evil", and I strongly suspect that this conversation will quickly devolve into a petty quibble over semantics. Because of that I don't think there is any argument, no matter how well reasoned or well supported, that will persuade you that you're wrong, so I'll just say these three things and shut the f--k up.

My argument was, and still is, that source code licenses and software licenses are similar in that both are implicit unilateral contracts - in US legal parlance implied-in-fact contracts. The legality of such contracts in and of themselves has never been under question. Certain terms in them have been under question, usually because they contradict the law, but never the concept of unilateral contracts itself. The reason I brought this similarity up is that very many people in one breath argue that EULAs are illegal, or at least void, because they haven't signed anything and it the next they are upset that someone has failed to uphold the terms of a source code license. I just don't like people intentionally playing oblivious to such similarities, simply because it fits their worldview better.

Also, please cut the "giving rights - taking rights" crap. Under "default copyright" law the only party that has any right over a piece of software, including the right to merely use the software, is the copyright holder. With source code licenses, the copyright holder gives others the right to use the source code, given they agree with certain terms. With software licenses the copyright holder gives others the right to use the software, given they agree with certain terms. No difference whatsoever.

And last - Thom, you are not a lawyer, please stop playing one on TV. These pseudo-authoritative blog posts do not help clarifying the issue, as I think you want to believe, they just fuel the flamewars. Go find a real, red blooded, living, breathing lawyer over there in the Netherlands and ask them about the issue - about the legality of unilateral contracts, about the legality of EULAs in general, about the legality of Apple's particular software license. See what someone competent to comment on the mater thinks. Maybe even share your findings with all of us - that would be fun. And if you still think EULAs are bunk afterwards, feel free to become the hero of teh Interwebtubes by actually challenging them in a real court and invalidating them once and for all, for the benefit of all of us.

Reply Score: 0

RE: Comment by lurch_mojoff
by jsolares on Fri 25th Sep 2009 15:39 UTC in reply to "Comment by lurch_mojoff"
jsolares Member since:
2005-07-06

copyright law != contract law, why do you keep trying to equate software licenses to contracts?

Reply Score: 2

RE: Comment by lurch_mojoff
by Thom_Holwerda on Fri 25th Sep 2009 15:45 UTC in reply to "Comment by lurch_mojoff"
Thom_Holwerda Member since:
2005-06-29

And last - Thom, you are not a lawyer, please stop playing one on TV. These pseudo-authoritative blog posts do not help clarifying the issue, as I think you want to believe, they just fuel the flamewars. Go find a real, red blooded, living, breathing lawyer over there in the Netherlands and ask them about the issue - about the legality of unilateral contracts, about the legality of EULAs in general, about the legality of Apple's particular software license. See what someone competent to comment on the mater thinks. Maybe even share your findings with all of us


I already did that.

http://www.osnews.com/story/19682/The_Legality_of_EULAs_in_The_Neth...

On top of that, don't flatter yourself. I have no idea who you are, and don't know your username. I didn't respond to you at all. I just noted a number of posts from people failing to understand the difference.

Reply Score: 2

RE[2]: Comment by lurch_mojoff
by gustl on Sun 27th Sep 2009 09:20 UTC in reply to "RE: Comment by lurch_mojoff"
gustl Member since:
2006-01-19

Your findings are exactly what I know of the situation in Austria.

Fact is, whenever I tried to buy software at a retail store (Windows XP was my last attempt), I somehow NEVER was pointed towards the EULA. No paper to read (I even asked for it), no internet URL, nothing.

In case of Microsoft, I even searched through Microsoft's product description pages, but did not find a single link to an EULA anywhere. It feeled like Microsoft did NOT want people to read their EULAS before a sale.

My conclusion: As long as software is sold as carelessly as nowadays in retail stores, it is quite easy to bypass ANY obligations an EULA may want to put on me.

So all I currently have to worry about is copyright ("Urheberrecht"). And as the software is sold to me with the implied license to install and run the software (otherwise it would need to be labeled "not for installing and running"), I can use it as I see fit. I am however aware, that I am NOT allowed to copy the software to other computers.

The makers of commercially sold software will need to educate their retailers or at a minimum put an internet URL on the package if they want to make their EULAs enforcable in Austria.

Reply Score: 2

RE: Comment by lurch_mojoff
by tupp on Fri 25th Sep 2009 23:57 UTC in reply to "Comment by lurch_mojoff"
tupp Member since:
2006-11-12

Since I was pretty much the only one arguing this last time, Thom, I guess this post is mainly meant for me.

Huh? This has been going on for quite a while.

Ever since the Psystar-Apple case started, there has been an endless stream of one-button-mousers who don't understand the basic differences between the structure of the OSX EULA and the structure of most open source licenses.

It seems like, once a week for the last year, some new, misinformed/naive Mac supporter would step-up and make the same erroneous assertions regarding the subject, which has necessitated repetitive clarification

By the way, I might have been the first on this forum to point-out the primary differences between EULAs and open source licenses, back in 7/22/08 (search for the word "dramatic"): http://www.osnews.com/permalink?324029



Under "default copyright" law the only party that has any right over a piece of software, including the right to merely use the software, is the copyright holder.

What?

If the holder of the copyright sells a copy of the software, song, book, lithograph, sheet music, DVD, etc., the purchaser then has the right to use or do whatever he/she wants with that copy (provided that the purchaser does not otherwise break copyright law or other laws).


With source code licenses, the copyright holder gives others the right to use the source code, given they agree with certain terms. With software licenses the copyright holder gives others the right to use the software, given they agree with certain terms. No difference whatsoever.

Perhaps in the RDF, these two assertions are correct and there are additionally no difference between them.

However, once again it seems necessary to revisit a point which has been clearly explained countless times in this forum (and, indeed, in the very article to which this current thread relates).

Open source licenses usually grant rights to use and modify the source code and also to distribute the source code. In these declarations, there are never any prohibitions regarding how the software is used.

Most software EULAs, on the other hand, emphatically make statements to try to prohibit distribution (reiterating established copyright rules), and, usually, the source code in such situations is not made available to end users. Furthermore, many software EULAs (such as the one for OSX) try to prohibit certain types of use (like what brand of hardware is okay to use).

Edited 2009-09-26 00:14 UTC

Reply Score: 2

v RE: Comment by lurch_mojoff
by clei on Sat 26th Sep 2009 13:27 UTC in reply to "Comment by lurch_mojoff"
RE[2]: Comment by lurch_mojoff
by Thom_Holwerda on Sat 26th Sep 2009 13:34 UTC in reply to "RE: Comment by lurch_mojoff"
Thom_Holwerda Member since:
2005-06-29

You are implying this article is wrong or contains flaws. Can you please point them out to me? I am very interested, so I can amend the article if needed.

Reply Score: 1

RE: Comment by lurch_mojoff
by boldingd on Mon 28th Sep 2009 16:49 UTC in reply to "Comment by lurch_mojoff"
boldingd Member since:
2009-02-19

I agreed with you previously, and I agree with you now. The fact that the aims of payware EULAs and permissive licenses like the GPL are different does not imply that the legal mechanisms that each license uses to achieve those aims are different. They are both, in fact, licenses, and both are implicitly agreed-to by the use of the covered software. The fact that the GPL gives you privileges, rather than taking them away, doesn't make it not a usage license.

Reply Score: 1

RE: Comment by lurch_mojoff
by zlynx on Wed 30th Sep 2009 02:38 UTC in reply to "Comment by lurch_mojoff"
zlynx Member since:
2005-07-20

End users DO have the right to execute and use a piece of software.

If you (the software author) give me a CDROM containing a binary copy of your software, and no other license, I (the end user) have the right to execute and use the software, read it, make personal copies and even make changes to it as long as I don't give them to anyone else.

This is all covered in the US law by exceptions required for use of the work and fair use.

It's the same idea as if I receive a book printed in mirror writing. I have the right to hold it up to a mirror (which creates a temporary copy) and read it, because that is the expected use of a book. The same with a music CD where the player hardware creates temporary copies both digital and audio.

I am not a lawyer but I have talked with some and I am pretty sure this is how it is.

Reply Score: 2

difference btw them according to me
by mtzmtulivu on Fri 25th Sep 2009 16:57 UTC
mtzmtulivu
Member since:
2006-11-14

1. EULAs take effect at the point of usage FOSS licenses take effect at the point of distribution

2. EULAs directly prevents redistribution by forcing everbody but the owner to be "end user", FOSS licenses allow redistribution(explicitly or implicitly by not specifically say you cant redistribute)

3. FOSS licenses does not interfere with fair use because they dont take effect at the point of usage, EULAs interfere with it because they take effect at the point of usage

4. implementations of EULAs force users to agree with it first before the work is allowed to be consumed(by clicking " i agree to these terms" usually), FOSS licences doesnt and cant have this "feature" because they do not come into play at the point of consumption.

Reply Score: 1

jabbotts Member since:
2007-09-06

Actually, FOSS licenses or at least Mandriva's specifically grants permission to redistribute. "here, take the software. give copies to anyone you like."

Reply Score: 2

If you want it in one line
by alcibiades on Fri 25th Sep 2009 17:58 UTC
alcibiades
Member since:
2005-10-12

If you want the real short form:

If you violate the GPL, its a copyright violation. That is an offence under the copyright law of the jurisdiction. No assent to any thing is required, its simply illegal. You have made copies or derivative works without permission, its illegal.

If you violate the EULA, you have broken a civil contract which you entered into at click-through with the supplier. Two things have to be true: One, the form of entry into the agreement have to be valid in your jurisdiction, ie click through after purchase. Second, the clause itself that is being enforced has to be lawful.

Intellectually desperate people want to argue that when you violate the Apple EULA you are violating copyright. They offer two justifications. One, that it is a license not a sale. Refuted by Softman and also by Vernor vs Autocad.

Second they argue that installation is copying, and the copying requires permission, and this is granted in the EULA, so to break the EULA is violating copyright. This is refuted by Title 17 S117, where you are explicitly granted the rights to make copies which are essential to use. This basically gives you the right to install OSX wherever the hell you like, as far as copyright is concerned. Or in fact, to authorize someone else to install it for you.

However, you will still violate the EULA, that is, the civil contract you entered into with Apple, and that is another story.

Reply Score: 6

RE: If you want it in one line
by StephenBeDoper on Fri 25th Sep 2009 20:00 UTC in reply to "If you want it in one line"
StephenBeDoper Member since:
2005-07-06

Intellectually desperate people want to argue that when you violate the Apple EULA you are violating copyright. They offer two justifications. One, that it is a license not a sale. Refuted by Softman and also by Vernor vs Autocad.

Second they argue that installation is copying, and the copying requires permission, and this is granted in the EULA, so to break the EULA is violating copyright. This is refuted by Title 17 S117, where you are explicitly granted the rights to make copies which are essential to use. This basically gives you the right to install OSX wherever the hell you like, as far as copyright is concerned. Or in fact, to authorize someone else to install it for you.


People have actually made argument? That's absurd - by that reasoning, it would be practically impossible to browse the web without breaking copyright law. E.g. viewing a copyrighted image file in a web browser would violate copyright law, since a local copy has to be made before you can view it (not to mention caching).

Reply Score: 2

RE[2]: If you want it in one line
by alcibiades on Sat 26th Sep 2009 12:00 UTC in reply to "RE: If you want it in one line"
alcibiades Member since:
2005-10-12

People have actually made argument?


Yes, afraid so. The argument has some limited legal merit, since there are cases to show that when you run a program you are, in US law, making a copy. The famous case was MAI. MAI sued a provider of support services on the grounds that when they started up the MAI diagnostics, they were violating copyright by making the copy that is made when the program was loaded into memory. And the complaint was upheld.

The legislators now realized that this was going to lead to an unfortunate situation. It would in effect give the vendor of software a right of veto over competition for support services. So in 1998, the Computer Maintenance Competition Assurance Act amended section 117 by inserting headings for subsections (a) and (b) and by adding subsections (c) and (d). These permit the owner of a piece of software to make any copies which are essential to use. Also to authorize others to make copies essential to use.

But not to sell those copies on when the original purchased copy is sold.

However, you can see that the tactic is one of intellectual desperation from the fact that they are citing a case, MAI, which was decided on the basis of the law previous to the 1998 amendments. And the 1998 amendments were made specifically to prevent the kind of arguments used in the MAI case being used again against people who were only making copies of a sort essential to the use of what they had bought.

The intellectually desperate have also tried another argument as they wriggle on the hook of S117. This is to argue that it permits copies essential to use with a machine. However, it is not essential to use it on a Dell, as it is possible to run it on a Mac. The Dell machine is accordingly not essential. Therefore (caution: non-sequitur coming down the track fast), you only have permission to install it on a Mac.

Of course, the problem with this argument is that it is the copying to use that has to be essential, not the machine. What you have a right to do is make any copies essential to use with the machine of your choice.

People will go to almost any intellectual contortions to try to argue that Apple has a copyright case, and this is just wrong, and stupid with it.

Reply Score: 3

IkeKrull Member since:
2006-01-24

People will go to almost any intellectual contortions to try to argue that Apple has a copyright case, and this is just wrong, and stupid with it.


Where does the Blizzard/Glider case fit into this picture?

According to this decision, the court decided that EULAs are binding and breaking the terms of the EULA results in a copyright volation according to the DMCA in the US.

http://arstechnica.com/gaming/news/2009/01/judges-ruling-that-wow-b...

Reply Score: 1

alcibiades Member since:
2005-10-12

It is, AFAIK, under appeal. For those not aware of it, the question was about the use of the Glider bot in playing World of Warcraft. The judgment contained two essential findings. One, in contradiction to Vernor and to Softman, the court held that the purchase of WoW was a license and not a sale. Second, the court was then able to hold that infringing the terms of use from the EULA meant that copies made in way of use were in contravention of copyright permissions, and thus unlawful under copyright law.

Well, it contained a third, which was that the Glider bot was not a DCMA contravention.

Recall that if you are the owner of the copy of the software, S117 gives you the right to make copies essential to use. So if you can find that you are not the owner, S117 will not apply. At that point you no longer have any permissions to make copies essential to use, so you need some permission from the copyright owner. Blizzard then could give you permissions only if you were not running Glider. It seems to be a question whether that's how their EULA actually reads, but that is not the issue of principle.

We must wait for the appeal decision on this one. You are correct, if it stands up, it means that to violate a EULA is automatically to violate copyright. It could also mean that a EULA can in effect dictate both use and environment. It could, for example, specifiy that you cannot install into a dual boot environment. It could specify that you may not install file format converters or have them present on hard drive. It could specify that you may not install competitive products once you've installed this one.

There is another way out of this one, which may occur as a result of the appeal. It is possible that it may eventually be found that WoW is different from an OS or application package. When you buy WoW you in effect buy entry into a networked service. So it could be held that this is significantly different from buying an OS or Office package, in that the client is not usable without the service, there is an ongoing relationship, and this could be held to make the purchase into a license rathr than a sale. If you like, this would be to hold that it was lawful to use Glider in conjunction with WoW as long as you were not using the online service as you did so, or with it. Which would sort of deprive it of its point.

I don't believe the decision will hold up in its most restrictive form. But, it may. And if it does, it means that you do not buy your copy of OSX or Windows, you only license it. And that if you install it or use it in a way contrary to the EULA, you will be violating copyright law.

Apple fans everywhere will cheer at this. But they should be very careful what they wish for. Because after they have got through encumbering their retail copies of the OS with conditions of control, they will then face a really serious problem, one much more serious than a few guys intalling OSX on white boxes.

That problem will be that the terms and conditions of retail sales or leases or licenses fall under consumer protection law in all jurisdictions. So they will have to make sure the terms and conditions are reasonable, don't result from an imbalance of power, are not anti competitive, are explained in plain English at the time of sale.... In the UK, for instance, this would all be down to Trading Standards, and after they get through with that, they will heartily feel that their last state is worse than their first.

Of course, the decision, if it comes down like that, will only apply in the US. It is still going to be a very hard row to hoe in the UK to argue that its a license not a sale, and that the EULA does not (contrary to UK contract law) modify a previous contract retroactively and without consideration.

One is sure however that, being Apple, they will try.

Note. An intelligent discussion of the Blizzard case here:

https://www.blogger.com/comment.g?blogID=12505562&postID=52037196762...

Edited 2009-09-27 09:05 UTC

Reply Score: 2

RE: If you want it in one line
by boldingd on Mon 28th Sep 2009 17:06 UTC in reply to "If you want it in one line"
boldingd Member since:
2009-02-19

Yeah, but the GPL is... a usage and distribution license, and therefore, a civil contract. That's what you guys are missing. A violation of the GPL is not directly a violation of copyright: it is a violation of a license that is granting you the privilege of using (and copying and distributing) covered software.

And for the record, I am damned well not an Apple fan-boy trying to defend some statement about Apple's EULA. I'm just not trying to re-invent U.S. law to make the GPL more special than it is.

Edited 2009-09-28 17:09 UTC

Reply Score: 1

RE[2]: If you want it in one line
by IkeKrull on Mon 28th Sep 2009 20:19 UTC in reply to "RE: If you want it in one line"
IkeKrull Member since:
2006-01-24

Yeah, but the GPL is... a usage and distribution license, and therefore, a civil contract. That's what you guys are missing. A violation of the GPL is not directly a violation of copyright: it is a violation of a license that is granting you the privilege of using (and copying and distributing) covered software.


Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.

The GPL doesn't purport to cover usage of software, and this is the key difference between a EULA and the GPL. The GPL relies solely and totally on copyright law for its scope and remedies - the GPL has no relevance, or application where copyright law would not otherwise apply.

An EULA purports to restrict your usage of the work, and not merely its distribution - aspects that copyright law and other statutes have limited applicability to.

The fact that it is possible to engage in usage of a work that is a violation of an EULA, that would be legal in the absence of the EULA is the key difference.

The GPL is different. If it would not be a copyright violation in the absence of the GPL, it is not a potential GPL violation, and if it is a GPL violation, it is a copyright violation. How much more direct can you get?

Reply Score: 1

boldingd Member since:
2009-02-19

Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.


That's a false statement -- or, I suppose, a misleading one. The reason that distributing a covered work outside the terms of the GPL is a copyright violation is because the GPL grants you a conditional license to use and copy the covered work. But it's still a license, and the original creator still maintains copyright. The way that copyright kicks in when you violate the GPL isn't that different from the way that it would kick in if you used or distributed commercial software in violation of its EULA -- let's not forget that copyright is also the reason that it's illegal to re-distribute commercial software in violation of it's EULA.

The GPL doesn't purport to cover usage of software, and this is the key difference between a EULA and the GPL.


It does, actually:
2. Basic Permissions.

All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.

You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force. You may convey covered works to others for the sole purpose of having them make modifications exclusively for you, or provide you with facilities for running those works, provided that you comply with the terms of this License in conveying all material for which you do not control copyright. Those thus making or running the covered works for you must do so exclusively on your behalf, under your direction and control, on terms that prohibit them from making any copies of your copyrighted material outside their relationship with you.

Conveying under any other circumstances is permitted solely under the conditions stated below. Sublicensing is not allowed; section 10 makes it unnecessary.


Emphasis mine. Granted, it doesn't have much to say about usage, but it does indeed cover the topic. Section... 9, I think, is also pertinent, and I'll edit it in later.


The fact that it is possible to engage in usage of a work that is a violation of an EULA, that would be legal in the absence of the EULA is the key difference.

The GPL is different. If it would not be a copyright violation in the absence of the GPL, it is not a potential GPL violation, and if it is a GPL violation, it is a copyright violation. How much more direct can you get?


The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.

Edited 2009-09-28 21:18 UTC

Reply Score: 1

IkeKrull Member since:
2006-01-24


The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.


But they aren't using the same mechanism. An EULA relies on it being intepreted as a contract that must be agreed to - EULAs purport to restrict user actions that would otherwise be legal.

This is not something you can just make a statement on and have it binding under the law.

The 'A' in 'EULA' is pretty important here. The GPL is not an agreement.

The GPL is nothing more than an iron-clad defense against copyright action by the licensor - there is nothing in the GPL that requires acceptance, it is only a statement of permission you can assume the author has granted, and only as valid as the authors own claims to the covered work.

Reply Score: 1

RE[4]: If you want it in one line
by lemur2 on Tue 29th Sep 2009 01:08 UTC in reply to "RE[3]: If you want it in one line"
lemur2 Member since:
2007-02-17

The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.


Well, you are corrrect in one sense, in that the GPL is a license.

Absolutely.

Your problem seems to be in understanding what that means. A license is a legal document that gives the holder permission to do something that otherwise he/she would not be allowed to do.

http://www.google.com.au/search?hl=en&source=hp&q=define%3A+lic...
a legal document giving official permission to do something


That is it. That is all that the GPL is. It is a legal document that gives the holder permissions to do some things, under some defined conditions.

A EULA, OTOH, is more than that. A EULA is a license, true, but it is also an agreement or contract. You have to agree to it. It imposes restrictions as well as granting permissions. The restrictions it imposes are not imposed by copyright law, they are imposed by the EULA contract.

The GPL is totally unlike a EULA in this respect. The GPL is a license and a license only. The GPL is "a legal document giving official permission to do something". That is the entire extent of it. The GPL is not an agreement, and it is not a contract, it is a license ONLY.

Reply Score: 2

boldingd Member since:
2009-02-19

So, would it be fair to say that the major legal distinciton -- the difference that would make the GPL enforcable in situations when an EULA would not be -- is that the GPL is not a contract, as it does not require consent from the licensee? There, you may have a point; I would argue that the GPL both imposes conditions on your distribution of the software and patentable contributions you make to the software; requires that it be accepted in order to distribute the software (or modified copies); and states that it is implicitly accepted if you re-distribute parts of the software. Check out the afore-mentioned section 9:

9. Acceptance Not Required for Having Copies.

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.


So... you're not required to accept the GPL to receive or run a personal copy, but you are required to accept its terms in order to distribute a copy. In this case, at least, then, it becomes a binding contract, by your own (google's) definition of the term, and it would be the same type of legal mechanism as an EULA. Although I do notice that you don't have to accept the GPL to use covered software: I would argue that it's still a contract, then, it's just not a contract that prevents you from using the software if you don't accept it's terms -- so, it's an EULA with very different and very permissive terms.

But that's a pretty fine hair to split, and I don't know enough about the legal system in the states to say for certain that I'm right about that.

(And, just to point out, the distinction here has nothing at all to do with whether the GPL is permissive or not: I don't think anyone was ever really unclear on that point. The question's pretty much always been, I think, whether the GPL is a contract in the same sense that an EULA is. My big objection was Thom's cute little effort to use pretty-pictures to explain the difference in granting permission and imposing terms, as if anyone was unclear on that point, while ignoring what we where actually trying to say.)

Edited 2009-09-29 15:45 UTC

Reply Score: 1

IkeKrull Member since:
2006-01-24

I do not agree that the GPL is a contract - neither the part related to the affirmation of unlimited usage rights (this is an affirmation, you had these rights already - and the GPL neither attempts to extend or restrict any rights related to usage) has any contractual element, and the section you referenced which indicates that you must accept the GPLs terms to distribute, as nothing else gives you that right - is simply a clarifying statement.

Yes, you must notionally 'agree' to these terms in order to distribute legally but that does not end up construed as a contract. You must agree because the provisions of copyrght law force you to, if you wish to remain in compliance with it. For example, if you are a minor, mentally impaired or otherwise deemed incapable of entering into a contract, you are legally able to distribute copyrighted material so long as you comply with it's license

The creator of a work has the right to control its distribution. If I, as the creator of the work say 'its not OK to distribute my work under any circumstances', no contract has been entered between the myself and the public, nor is a person who decides to distribute the work against my stated terms breaching contract. They are (excepting fair use or other distribution allowed under copyright law) violating copyright law.

Because you are subject to copyright law, you are forced to recognise the creator of a works right to unilaterally set the conditions under which it can be distributed. No contract is required or construed between the recipient of the work and the creator, it is the direct result of copyright law. If there is any contract here, it is between you and the state.

GPL violations are not, and cannot be litigated under contract law. The creator of a work licensed under GPL cannot sue you for breach of contract due to GPL violation.

An EULA generally includes this type of copyright-based licensing - but crucially extends it with a contractual component - this component does require agreement, whether implied by fulfilment of its stated conditions under unilateral contract law (and this is the fuzzy part - and grounds for a lot of confusion around what is a contract and what isn't, i think) or explicit (usually it is somewhat explicit to avoid a defendant in a breach of contract case arguing he had a reason to believe no contract was entered into in good faith, to avoid the possibility of a defendant arguing about selective agreement to EULA conditions, a defendant arguing that unconscionable clauses render the entire EULA invalid etc.).

These additional provisions, provisions which do not rest solely and entirely on copyright law, would be litigated as a breach of contract, or provide remedies enabled only by contract law.

Note that 'I never agreed to be bound by copyright' or 'the terms of copyright law are unconscionable therefore i did not abide by them' are not a defense against a copyright violation, ever.

I agree that any so called EUL that relied solely on the rights extended to the creator or licensor to state the terms of distribution and/or use under existing statutes would be indistinguishable from a 'pure creators rights' license like the GPL.

However, as I said before, the 'A' in EULA is the really significant difference, and I would say that if one wished to 'split hairs' then then construing an EULA that did not restrict usage rights at all would be a good example.

I think you have point, in that both EULAs and the GPL rely heavily on copyright law where they concern distribution - if you look only at this aspect then they do use the same legal mechanism, however an 'EULA' would just be a 'L' if it was entirely equivalent to a GPL style license, and the point of an EULA is to extend a copyright-based license into a contractual agreement that controls usage, along with other activities such as reverse engineering, and/or requires the licensee to waive their rights, and/or grant additional rights to the licensor of the software.

Reply Score: 1

RE[3]: If you want it in one line
by lemur2 on Tue 29th Sep 2009 01:16 UTC in reply to "RE[2]: If you want it in one line"
lemur2 Member since:
2007-02-17

Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.


This is true ONLY if one is relying on the permissions that the GPL grants in order to distribute the work.

If one wanted to use some software that was GPL in one's own proprietary closed-source product, that is entirely possible by going to the copyright holder (most often this is the author) and obtaining permission outside of the GPL.

The GPL license doesn't cover this. This involves another sort of license, a commercial license for the source code. There is a lot of source code available that is dual-licensed like this.

Obtaining a commercial license for the code, so that one can use it in one's own closed-source commercial product, would normally involve PAYING the author for the permission to do so.

Doing this without permission, without paying the author for that permission, is stealing the code. Copyright law says so.

For those who champion closed-source software, what is actually wrong with that concept?

Edited 2009-09-29 01:18 UTC

Reply Score: 2

Well done Mr. Holwerda
by Johnny on Sat 26th Sep 2009 03:02 UTC
Johnny
Member since:
2009-08-15

Mr. Holwerda,
If I lived in your neighborhood, I would bring you a six pack of whatever beer you liked. That was a nice, clean, succint explanation of the difference between Open Source Licenses and eulas. Thank you for a job well done.

Reply Score: 1

RE: Well done Mr. Holwerda
by Thom_Holwerda on Sat 26th Sep 2009 12:42 UTC in reply to "Well done Mr. Holwerda"
Thom_Holwerda Member since:
2005-06-29

I prefer a real Martini - as in, just the Martini Bianco [1]. Tall long drink glass, 1/3-1/2 filled, no ice, no lemon. You can wake me any time for that.

[1] http://alkoabi.ee/images/products/martinibianco.jpg

Reply Score: 1

Lucid artcile
by zmdmw52 on Sat 26th Sep 2009 12:49 UTC
zmdmw52
Member since:
2009-09-26

Thanks for this article that lucidly explains the different types of copyright/left licenses.

Reply Score: 1

Matlock Howerwawawald
by Karitku on Mon 28th Sep 2009 09:27 UTC
Karitku
Member since:
2006-01-12

I didn't know Thom was lawyer. Then objection!

Your whole post is mess. Firstly copyright can't be really implemented on software products, because it wasn't designed for them (nobody buys code with EULA!). Secondly stuff like EULA and specially SLA are there to make sure both parties know there responsibilities and rights. So EULA and SLA are for products, NOT CODE!, GPL is for code and product. Stop mixing Apple with Bananas!

Reply Score: 3

Innacurate and flamebait
by spiderman on Mon 28th Sep 2009 12:05 UTC
spiderman
Member since:
2008-10-23

the copyleft concept of the GPL can only be seen as a restriction when looked upon from the perspective of more permissive licenses such as the BSD license.

What did you think when you wrote this?
This is obviously false, since the copyleft concept of the GPL can OBVIOUSLY also been seen as protection AGAINST restrictions, especially when looked upon from the perspective of the BSD license.
Not only is this obviously false, but this obvious flamebait too. And putting some random color bars won't change those facts.

You should not have mentioned the BSD at all in your article.

Edited 2009-09-28 12:18 UTC

Reply Score: 2

RE: Innacurate and flamebait
by Thom_Holwerda on Mon 28th Sep 2009 12:45 UTC in reply to "Innacurate and flamebait"
Thom_Holwerda Member since:
2005-06-29

Something can be a restriction and a protection at the same time.

Reply Score: 1

RE[2]: Innacurate and flamebait
by spiderman on Mon 28th Sep 2009 13:29 UTC in reply to "RE: Innacurate and flamebait"
spiderman Member since:
2008-10-23

If so, then it is not only a restriction, as it would be also a protection. Your sentence in the article is therefore inaccurate.

By that logic, the requirement to distribute the code with BSD licensed software can only be seen as a restriction when looked upon from the perspective of more permissive proprietary licensed that don't require you to distribute the code.
That would ignore completely the point of the requirement and exposes your uninformed opinion that there is no point in distributing source code (as it was ONLY a restriction). No, it is not ONLY a restriction and can not be seen ONLY as a restriction, OBVIOUSLY. Most people would think that not having the source code is quite a bigger restriction than not having to distribute it.

And, as I said, it is flame bait, too.
It was totally unnecessary. You article should stick to differences between EULA and OSS licences. Or if you have to talk the differences between the GPL and the BSD, do it factually.

Reply Score: 2

google_ninja Member since:
2006-02-05

All copyright restrictions are protections to someone. The BSD license has no protections/restrictions, the GPL does.

Reply Score: 2

RE[4]: Innacurate and flamebait
by spiderman on Mon 28th Sep 2009 14:20 UTC in reply to "RE[3]: Innacurate and flamebait"
spiderman Member since:
2008-10-23

Lack of protection can also be seen as restriction. It's all relative to one's point of view.
Anyway, the BSD license DOES have restrictions/protections. It is mandatory to distribute BSD licenced software with the code and you can not change the license unless the modifications are 'substantial'.
Trying to represent rights in bar charts is usually a bad idea. Putting in text that this is the only possible point of view is also a bad idea. And comparing the BSD and the GPL on some computed "sum of rights" is a very bad idea. It's a lot more complex than that actually. It's better to avoid the subject all together.

Edited 2009-09-28 14:24 UTC

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

Lack of protection can also be seen as restriction. It's all relative to one's point of view.


By that token China is the freest society in the world.

Anyway, the BSD license DOES have restrictions/protections. It is mandatory to distribute BSD licenced software with the code and you can not change the license unless the modifications are 'substantial'.


Of course it has. It just has less of them than the GPL. The fact that you trip over this so badly even though the article contains no qualifications whatsoever says a lot more about you than it does about me.

Reply Score: 1

RE[6]: Innacurate and flamebait
by spiderman on Mon 28th Sep 2009 15:06 UTC in reply to "RE[5]: Innacurate and flamebait"
spiderman Member since:
2008-10-23


By that token China is the freest society in the world.

To some people, it is.
It just has less of them than the GPL.
And It has more of them than some proprietary licences.

Edited 2009-09-28 15:08 UTC

Reply Score: 2

google_ninja Member since:
2006-02-05

Lack of protection can also be seen as restriction. It's all relative to one's point of view.


How so?

Trying to represent rights in bar charts is usually a bad idea. Putting in text that this is the only possible point of view is also a bad idea. And comparing the BSD and the GPL on some computed "sum of rights" is a very bad idea. It's a lot more complex than that actually. It's better to avoid the subject all together.


In general I would agree, in this case I don't just because of how simple it is. One requires you not to remove some comments, the other requires you to GPL license any code that touches it. From the point of view of someone wanting to use a library it is pretty clear cut, the GPL is much more restrictive.

It also isn't just my opinion here, this is why pretty much the entire ruby and python communities have rejected the GPL in favor of less restrictive licenses, and tend to get very upset when a major library uses it as a license.

Reply Score: 2

RE[6]: Innacurate and flamebait
by spiderman on Tue 29th Sep 2009 05:48 UTC in reply to "RE[5]: Innacurate and flamebait"
spiderman Member since:
2008-10-23


How so?
You really don't get it?
If you don't put police officers to watch that nobody kills their neighbour, it is a lack of protection and for you it is a restriction because you can't go out of your house of you will be shot by the mad neighbour.
The little restriction in the law that says 'you can't kill your neighbour' is actually a protection against the restriction that would make you unable to get out of your house.


In general I would agree, in this case I don't just because of how simple it is. One requires you not to remove some comments, the other requires you to GPL license any code that touches it. From the point of view of someone wanting to use a library it is pretty clear cut, the GPL is much more restrictive.

It also isn't just my opinion here, this is why pretty much the entire ruby and python communities have rejected the GPL in favor of less restrictive licenses, and tend to get very upset when a major library uses it as a license.

From the point of view of someone who just want to use software, Adobe's flash license is no more restrictive than the BSD license.
From the point of view of someone who want to modify open source software and don't give back his code, the BSD is less restrictive than the GPL.
From the point of view of someone who want to modify and distribute improved derivative software, the GPL is less restrictive than the BSD.
From the point of view of someone who want to distribute software as is but don't want to distribute code, proprietary license is less restrictive than the BSD license.
It's not my opinion there, it's the opinion of a lot of people: those who use the GPL, those who use the BSD and those who use proprietary licenses.
The term restrictive is RELATIVE to your point of view.

take the case in the article about the AFPA. For them the GPL was less restrictive than the BSD, because had the code been under a BSD license, they just could not have won the case and they just would not get the code.

Do you get it?

Reply Score: 2

BallmerKnowsBest Member since:
2008-06-02

So if it's something that you're in favor of, then it's a protection. And if it's something that you're opposed to, then it's a restriction? Gotcha.

Reply Score: 2

RE[4]: Innacurate and flamebait
by spiderman on Tue 29th Sep 2009 05:32 UTC in reply to "RE[3]: Innacurate and flamebait"
spiderman Member since:
2008-10-23

So if it's something that you're in favor of, then it's a protection. And if it's something that you're opposed to, then it's a restriction? Gotcha.

Exactly my point. What is so hard to understand? Glad someone got it finally.

Reply Score: 2