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!
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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 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 Parent Score: 2

RE: Comment by lurch_mojoff
by Thom_Holwerda on Fri 25th Sep 2009 15:45 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 Parent Score: 2

RE[2]: Comment by lurch_mojoff
by gustl on Sun 27th Sep 2009 09:20 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 Parent Score: 2

RE: Comment by lurch_mojoff
by tupp on Fri 25th Sep 2009 23:57 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 Parent Score: 2

RE: Comment by lurch_mojoff
by clei on Sat 26th Sep 2009 13:27 in reply to "Comment by lurch_mojoff"
clei Member since:
2008-10-04

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.

Quite frankly what really needs to happen in this area is people like Thom who has no legal training needs to get sued when they start posting as if they *HAD* actual legal knowlege or training.

PJ over at Groklaw is a perfect example of the proper way of doing this kind of stuff.

She admits she's not a lawer, but a paralegal and if you have any questions do yourself a favor and contact a *REAL* lawyer.

Reply Parent Score: -1

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 Parent Score: 1

RE: Comment by lurch_mojoff
by boldingd on Mon 28th Sep 2009 16:49 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 Parent Score: 1

RE: Comment by lurch_mojoff
by zlynx on Wed 30th Sep 2009 02:38 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 Parent Score: 2