Linked by Thom Holwerda on Mon 12th Oct 2009 18:25 UTC
Legal Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.
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RE[8]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 21:00 UTC in reply to "RE[7]: OSNews legal analysis"
rhavyn
Member since:
2005-07-06

The differences between the GPL and an EULA are very important in this matter. Stating that both of them look like contracts does not make them the same from a legal standpoint.


Actually, it does.

The difference between an EULA and the GPL is that a GPL violation is automatically a *copyright* violation, whereas a violation of an EULA *could* be a copyright violation, but it could also be a mere *breach of contract*.


So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."

Breach of contract is not illegal. Copyright violation is illegal.


Again, irrelevant to the point.

I can cite you every case in which the GPL has been tested in any court in any country in the world. Because the GPL *grants* rights you would not have under default copyright, violation of it means you are violating copyright. This core notion of the GPL has been upheld by courts all over the world, and it. Has. Never. Failed.


Again, irrelevant.

When it comes to cases in which the EULA has been involved, you'll see numerous cases going against the EULA, numerous cases going for the EULA; in general, it's all very muddy and nobody really knows what it all means.


And, again, irrelevant, but I'd be highly amused for you to provide actual Sheppardized citations showing the numerous cases going against EULAs.

On top of that comes the fact that the manner in which you agree to an EULA is very questionable, whereas agreement with the GPL is an unimportant point; mere users do not need to agree to the GPL (as it does not restrict usage in any way), and developers/distributors can not disregard it because that would mean they would violate copyright.


The manner you agree with an EULA is, barring a few exceptions, not at all questionable and if you'd actually read Psystar's motion you'd see that even they agree to that point. It's tough to argue with someone about law when they continue to spout utter falsehoods about it. And, I'm sure you'll find, particularly regarding the actual point (first sale doctrine w.r.t GPL), how you agree to the GPL becomes very important.

This is not an analysis, this is pure and simple fact, proven time and time again in all those GPL court cases.


You're right about one thing, it's not analysis. It's also, unfortunately, arguing for an enormous straw man that you managed to erect and then somewhat successfully pull down.

Reply Parent Score: 0

RE[9]: OSNews legal analysis
by cycoj on Tue 13th Oct 2009 00:58 in reply to "RE[8]: OSNews legal analysis"
cycoj Member since:
2007-11-04

It's funny that you call out on Thom for not backing up his claims, while not giving any evidence yourself. Now with respect to your arguments.

Because EULAs and the GPL look like contracts they are the same? What sort of argument is that? So all contracts are the same?? Furthermore "free software licenses are not contracts" [see wikipedia on software licenses and the references therein].

The same article also states that EULA cases are usually disputed however it does not provide a citation. However in a lot of european countries EULAs are considered not valid due to the nature of the contract (it only takes rights away from you, while not giving you any rights (you already have the right to use the software when you buy it)). [you could read the german wikipedia article on this if you need citations]. So at least in a lot of countries Thom's argument was correct.

Reply Parent Score: 1

RE[10]: OSNews legal analysis
by Piot on Tue 13th Oct 2009 01:16 in reply to "RE[9]: OSNews legal analysis"
Piot Member since:
2009-09-17

Why do you guys always come up with the "I can do anything I want in Europe" argument.

JUST ONE EXAMPLE

In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law

"the EULA I agree with by clicking "I agree" is actually a valid contract according to Dutch Contract Law

Effectively, if PsyStar was a Dutch company, Apple would have legs to stand on to legally force them to stop distributing Mac OS X Leopard pre-installed."

Reply Parent Score: 2

RE[10]: OSNews legal analysis
by rhavyn on Tue 13th Oct 2009 01:22 in reply to "RE[9]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

It's funny that you call out on Thom for not backing up his claims, while not giving any evidence yourself. Now with respect to your arguments.


I've given evidence many times. Go ahead and look at my other posts. I quote extensively from statute and legal opinions. There is generally no point in providing citations for something this basic though. But since you asked...

Because EULAs and the GPL look like contracts they are the same? What sort of argument is that? So all contracts are the same?? Furthermore "free software licenses are not contracts" [see wikipedia on software licenses and the references therein].


From the very first line of the Wikipedia article for "software license" (http://en.wikipedia.org/wiki/Software_license)

A software license (or software licence in commonwealth usage) is a legal instrument (by way of contract law) governing the usage or redistribution of software.


Or, the very first line of the Wikipedia article for EULA (http://en.wikipedia.org/wiki/Eula)

A software license agreement is a contract between a producer and a purchaser of computer software that is included with software.


Now, I never said all contracts are the same. And contracts almost always enter into some other areas of law and thus must be read with those laws in mind. However, both EULAs and the GPL involve copyright law and the redistribution of software. They are both contracts, specifically contracts of adhesion. Furthermore (from West's Encyclopedia of American Law, edition 2.) (http://legal-dictionary.thefreedictionary.com/Adhesion+Contract)

There is nothing unenforceable or even wrong about adhesion contracts.


So, under what legal doctrine would you like to claim that EULAs and the GPL don't use the same legal instruments to be effective?

The same article also states that EULA cases are usually disputed however it does not provide a citation. However in a lot of european countries EULAs are considered not valid due to the nature of the contract (it only takes rights away from you, while not giving you any rights (you already have the right to use the software when you buy it)). [you could read the german wikipedia article on this if you need citations]. So at least in a lot of countries Thom's argument was correct.


Considering that the lawsuit in question takes place in the United States, there is no way to construe Thom's argument as correct. Looking at European law is equally a fruitless exercise.

Reply Parent Score: 2

RE[9]: OSNews legal analysis
by lemur2 on Tue 13th Oct 2009 10:02 in reply to "RE[8]: OSNews legal analysis"
lemur2 Member since:
2007-02-17

So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."


You are wrong here. One cannot "violate" the GPL.

This is because the GPL is not a contract, it is merely a license.

A license is defined as: "a legal document that gives you permission to do something".

That is it. Period. That is all there is to it.

http://www.google.com.au/search?q=define%3A+license&ie=utf-8&oe...

So, by definition, you cannot violate the GPL. It is simply not possible.

If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK.

If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission.

Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however.

This is why the GPL is not a contract.

Reply Parent Score: 2

RE[10]: OSNews legal analysis
by Bounty on Tue 13th Oct 2009 16:52 in reply to "RE[9]: OSNews legal analysis"
Bounty Member since:
2006-09-18

"So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."
You are wrong here. One cannot "violate" the GPL. This is because the GPL is not a contract, it is merely a license. A license is defined as: "a legal document that gives you permission to do something". That is it. Period. That is all there is to it. http://www.google.com.au/search?q=define%3A+license&ie=utf-... So, by definition, you cannot violate the GPL. It is simply not possible. If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK. If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission. Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however. This is why the GPL is not a contract. "

huh? So what about distributing modified software w/o giving the source?

Reply Parent Score: 2

RE[10]: OSNews legal analysis
by rhavyn on Tue 13th Oct 2009 17:30 in reply to "RE[9]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

"So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."


You are wrong here. One cannot "violate" the GPL.
"

The armchair lawyering on this site is getting to new lows. That comment makes no sense. Of course you can violate the GPL.

This is because the GPL is not a contract, it is merely a license.

A license is defined as: "a legal document that gives you permission to do something".


And that document, if it gets litigated gets treated as ... a contract!

That is it. Period. That is all there is to it.


Except, it isn't.

So, by definition, you cannot violate the GPL. It is simply not possible.


Again, that simply doesn't make sense. You could similarly say you can't violate a contract you [fill in the blank here] where you fill in the blank with something which causes a law to be broken.

If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK.

If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission.


Correct

Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however.

This is why the GPL is not a contract.


Incorrect. The GPL is a grant of rights. People can and do disagree on what the GPL says. All the linking clauses for example, it is very unclear whether or not you are linking by the definition in the GPL or not in certain programming languages. You could be sure you are in the right and the copyright holder can be sure you aren't. So you go to court. The license is treated as a contract in court. The language will be litigated and a judge will decided who is right. If you are wrong then you violated the GPL and by violating the GPL you have lost your distribution rights.

From the GPL v3 section 3

However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.


At that point you have not committed copyright infringement. You would only commit copyright infringement if you continue to redistribute the software after your rights under the GPL have been terminated.

Reply Parent Score: 2