Linked by Thom Holwerda on Fri 10th Sep 2010 23:38 UTC
Legal EULAs, and whatever nonsense they may contain, are legally binding in the US. Have a great weekend!
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WereCatf
Member since:
2006-02-15

How is the creation and distribution of a derivative work not a 'use' of the software?

Lemur already answered this but in his own typical way of throwing a bunch of links and not being too coherent. So, I am answering in a way that hopefully even a layman would understand.

'Use' of GPLed software literally means using it in a personal environment, ie. you do something with it. Using GPLed code in f.ex. a software project you are coding is literally using it, after all you do something with it. It is a derivate work then but as you are not distributing it you are free to do as you may with it.

It's when you wish to distribute the application you wrote that the copyright law steps in: you have code in your application that is copyrighted to another party and you have to agree to their terms before you can distribute their copyrighted work. This is not 'use' of the code, however, this is literally distribution, and copyright law is all about distribution of copyrighted works.

If you make proprietary licenses invalid, you have to do the same for Free licenses.
Copyright is the only law that covers both sides of the software fence.
The copyright owners can grant/deny anything in regards to their work.
Them's the facts.


Incorrect. Copyright law governs the distribution of copyrighted works, not use. In most EULAs in proprietary software there are lots of clauses how you can use the software and how you can't, but such clauses do not belong under the copyright law and are invalid in most countries. Of course, the parts where EULA says you are not allowed to copy the software to others etc do fall under copyright law and those parts are valid.

Then again, selling a copyrighted work as a whole, not parts of it or copies of it, belong under sales law; it's not distribution, it's the copyrighted work changing owner from one to another with the aforementioned party losing their ownership. EULAs cannot dictate how sales laws applies to them and thus all such clauses are again invalid. And before you jump to conclusions: no, it's sales about the particular work, not the copyright of it.

(I'm starting to think that it'd be easier to just write a complete article explaining these things than just repeating the same things in comments section every time someone who doesn't understand what he's talking about makes erroneous claims..)

Reply Parent Score: 3

TheGZeus Member since:
2010-05-19

Yes, EULA go beyond copyright law, but the only reason they have the ability to restrict your use and/or redistribution _at all_ is due to copyright law.

If there were no copyright law it would be perfectly legal/valid to crack the software so the EULA would not appear and use the software however you wished.
That's not the case, though because you've now created a derivative work, which is something covered by copyright law.

Again, there is one clause in the GPL/other licenses that covers use: The Warranty Clause.
It's explicitly giving rights in regard to use, and warning of all responsibility for the results of said use being placed on the user.
That would be a good thing to know for most people, actually. How many bug reports are angry because people feel they have a 'right' to software that works how they want it to?
But that's a philosophical discussion.

The distinction between free licenses and EULA is a philosophical one.
EULA carries a stigma, but there's nothing in the term that makes it distinct from free licenses.
Proprietary EULA generally cover alot more ground than Free ones, yes, but they both cover distribution.

By saying they're different because one covers 'use' implies that there's a difference between 'use' and 'programming'.
Perhaps I'm just unduly enlightened here, as I can't program well at all, but I always thought "The difference between users and programmers is programmers know there's no difference". (source forgotten)
The percieved distinction between them is created by proprietary software vendors trying to make programming seem like majick. (*coughapplecough*).

BASH is turing-complete. The CLI is a repl. There are arguments that GUI use is a form of programming.
Do all of these create derivative works? No.
But "use" and "distribution". are different. "use" and "programming" are not.

Use _is_ covered by free licenses: "use it however you want".
It's just not _restricted_.

It's the fact that you must be granted (installation of a copy) additional right(s), _and_ they choose to restrict standard rights (numerous bullshittery, single machine, cannot be moved, etc) that make them something you must agree to. You have to _waive_ rights, so you must agree to a contract.
If I wanted someone who was releasing something under the GPL to allow me to use it under the terms of the Apache license, I would have to ask them permission, and they would have to agree before I could use it, as they would have to waive additional rights that they held previously (the right to see all code from a derivative work).

Waiving rights requires explicit agreement, gaining them does not.

The 'difference' between free licenses and proprietary is one grants more rights, the other restricts you further than existing ones. (even if it's shareware, they generally explicitly disallow decompilation, or if it's interpreted they might explicitly prevent the use of the code in a derivative work, even if used only internally)

Stigma attached to a term does not prevent logic from putting free licenses under the umbrella term EULA.
where in the term End User License Agreement does it say "text that appears and must be agreed to prior to use"?

They both cover both Use and Copying/Distribution to varying degrees.
One is very concerned with both, one is very concerned with one or neither. (MIT doesn't give a f--k about either, really. Check the Crowley Public License some time)
One generally restricts, the other grants.
They both cover the same things, and can do so because of the same reason: The 1976 copyright act.
proprietary licenses use it how the lobbyists intended, the GPL et al hack it.
If two scripts use a subsystem, but one uses it in a new, unexpected way, that doesn't make the new script not use the subsystem.
Files get transfered over HyperTEXT transfer protocol every day.

I'm out of good ways to make my point atm. Need more coffee.

EDIT:
Just to be clear, I think this AutoDesk license is far to restrictive, and should have been considered invalid.
If the 'copy' (installed software) is 'destroyed' (deleted) then the original software is no longer in use.
The license should be transferrable to another party at that point. The same should be true with any EULA.
Sadly, EULA have been held up in the past.
Destruction of the original copy is the main difference between this and the license of say MS Windows, which is already draconian enough to make you pay for it again if you change out your mother board/hard drive.
Certain restrictions above copyright are reasonable (don't share it with your friends or install it on two machines. That would be fair use, I think, but I also understand why they would want to restrict that, and it's not unreasonable. I just don't use software like that because it's complicated remembering all this crap/telling my friends to go to this one site and get this and agree to that... "Install Debian" is much easier).
That's too much. That should not be upheld in court. It is. fok.

Edited 2010-09-12 14:50 UTC

Reply Parent Score: 1

WereCatf Member since:
2006-02-15

If there were no copyright law it would be perfectly legal/valid to crack the software so the EULA would not appear and use the software however you wished.

It actually is legal and valid, though perhaps not in the US. Even if the EULA is not shown copyright law still applies. Not seeing copyright clause is not an excuse. And yes, it is fine and legal to crack, hack and modify software you have bought as long as you don't distribute it. If you don't distribute it copyright law doesn't apply to it either. It has already been court-tested several times and proved legal, claiming cracking/hacking software you have legally bought or obtainedd is illegal is misleading and not true.

And no, I am not talking about US laws.

Edited 2010-09-12 14:53 UTC

Reply Parent Score: 2

Soulbender Member since:
2005-08-18

EULA would not appear and use the software however you wished.


What makes you think the copyrtight holder even have ANY rights at all dictating how their work is used? Does Ford have a right to tell you what roads you can drive their cars on or what race the passengers has to be?

That's not the case, though because you've now created a derivative work, which is something covered by copyright law.


Use does not create a derivative work.

Reply Parent Score: 2

lemur2 Member since:
2007-02-17

Copyright law governs the distribution of copyrighted works, not use. In most EULAs in proprietary software there are lots of clauses how you can use the software and how you can't, but such clauses do not belong under the copyright law and are invalid in most countries.


A EULA is an "End User License and Agreement".

The license part is the part that grants permissions for the activities covered by copyright law, which as you say, essentially deals only with distribution.

The agreement part is purported to be an additional contract between the software vendor and the user, which is supposed to cover all kinds of restrictions for acts which are not covered by copyrighjt law at all. A contract is supposed to be agreed to by all parties. EULAs are claimed to be contractually binding, having purportedly gained mutual agreement when a user clicks "I Agree".

Contract agreements are held to be valid in all countries, AFAIK.

IMO, it is a wise idea to never click on "I Agree" for a EULA if you can possibly avoid it. You are agreeing to be bound by all sorts of conditions and restraints that no law requires you to be bound to.

In contrast, the GPL is a license only. It gives conditional permissions for the activities covered by copyright law. In addition, it gives unconditional permissions for other activities related to the software (such as "using" it, i.e. running it) which are not covered under copyright law.

I am not clear why the unconditional permissions, for those acts not covered by copyright law, are required. After all, it is not illegal to read a book which you have not purchased (e.g. you can borrow an book from a friend) ... if it were illegal to read we would have no libraries. So why should it be illegal to run software?

Anyway, the GPL gives you the permissions, required or not, just in case there is any doubt.

The GPL is not an agreement, it is merely a document granting permissions. It is a license only.

Edited 2010-09-13 02:16 UTC

Reply Parent Score: 2