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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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.

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alcibiades Member since:

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:

Edited 2009-09-27 09:05 UTC

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