From: Alexander Terekhov (terekhov_at_[hidden])
Date: 2004-07-31 08:27:53
Momchil Velikov wrote:
> >>>>> "Alexander" == Alexander Terekhov <terekhov_at_[hidden]> writes:
> Alexander> All the same ways as with copyrighted text. The GPL is not a
> Alexander> contract and there's just nothing to accept. You'll have to
> Alexander> show some copyright infringement (USC 106 though 121) without
> Alexander> using words "distribution" and "promise". Assume that I simply
> Alexander> download GPL'ed copies from some FSF's site not clicking on
> Alexander> any "I accept" buttons.
> When you buy a book you don't sign a contract too. Nor a license.
> That does not mean that you have rights to copy the original work or
Nothing; fair use (fair use copies also fall under 17 USC 109, BTW)
aside for a moment.
> How come with downloaded software it means ?
What do you mean? If I need two copies, I can download it two
times (implied license "to save bandwidth" aside for a moment).
> I'd think making copies of the work constitutes an equivalent to
> clicking an accept button.
(Open Source Licensing: Virus or Virtue?)
"Similarly, in Specht v. Netscape Communications Corp., the court
held that no agreement is formed if the customer downloads the
software without clicking a clickwrap and without first being
informed that the downloading constitutes acceptance of the
license agreement. The customer could download this software
from Netscapes website without being first forced to click the
clickwrap. Further, the notice about the existence of the
clickwrap was not even visible on the screen when downloading the
softwarethe user would only discover the clickwrap by browsing
elsewhere on the website. The only hint that a contract is
being formed is one small box of text referring to the license
agreement, text that appears below the screen used for
downloading and that a user need not even see before obtaining
the product. Thus, the downloader was not bound by
inconspicuous contractual provisions of which he was unaware."
(The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling)
Everybody and his dog (apart the Munich district court) is aware
that the GPL is *NOT* a contract.
But most proprietary software companies want more power than
copyright alone gives them. These companies say their software is
``licensed'' to consumers, but the license contains obligations
that copyright law knows nothing about. [...] Copyright law doesn't
prohibit decompilation, the prohibition is just a contract term
you agree to as a condition of getting the software when you buy
the product under shrink wrap in a store, or accept a
``clickwrap license'' on line. Copyright is just leverage for
taking even more away from users.
The GPL, on the other hand, subtracts from copyright rather than
adding to it. The license doesn't have to be complicated, because
we try to control users as little as possible.
The only thing we absolutely require is that anyone distributing
Well, 17 USC 109, Herr Professor.
Because there's nothing complex or controversial about the
license's substantive provisions, I have never even seen a
serious argument that the GPL exceeds a licensor's powers. But
it is sometimes said that the GPL can't be enforced because
users haven't ``accepted'' it.
This claim is based on a misunderstanding.
> Besides, it is common to obtain the work and be aware of the license
> afterwards. That again I can't imagine that means you're not bound by
> the terms of the license.
Talk to your lawyer, Momchil. The GPL is a joke.
(Lawrence Rosen, Manifestation of Assent)
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