> > These are EULAs. I'm talking about pure copyright licenses like the > > OpenSSL, BSD, and GPL licenses. EULAs are agreements, you must actually > > agree to them to use the work and this is actually enforced in some > > manner.
> Incorrect, see the following (I found on a quick scan): > > http://www.microsoft.com/malaysia/genuine/myths/ > > "...You can however transfer the entire desktop/notebook with the OEM > license > to a new user/company. When transferring the PC to the new end user the > original > software media, manuals (if applicable) and Certificate of Authenticity > (COA) must > be included. It is also advisable to include the original purchase invoice > or receipt. > The original end user cannot keep any copies of the software...." > > Nothing is said there about requiring the new owner of the old PC and old > OEM software to actively accept the EULA Quite obviously since > the software > is already installed and working, the Windows installer cannot prompt the > new owner to accept the EULA. No need, you already accepted the EULA and the EULA says it survives such a transfer. (See below for the case where there never was any affirmative act.) > Thus, the statement "you must actually agree to them to use the work and > this is actually enforced" isn't correct. At least, not in this > instance. To the extent that there is no affirmative act of agreement to the EULA, Microsoft will have a hard time enforcing it. I have seen laptops that, on first customer boot, require you to accept a Microsoft EULA. I think Microsoft would have hard time enforcing their EULA if there was no positive act of assent to it. > The new owner also could slipstream the existing Windows install and > create a installer that didn't ask the EULA acceptance question, I believe > an explanation of how to do this was discussed in Ct several years ago. > He could then legally install the Windows copy on any machine, not just > the OEM one, since he never accepted the EULA. True. I have no idea how courts would rule on this. ProCD v. Zeidenberg, among other cases, indicates that the crux of validity is some positive act of agreement. If you buy a laptop pre-installed, and the EULA click-through is disabled somehow, I don't see how there is that positive act. > Speaking as a published author of a book I can assure you that nowhere in > my book contract is the word "license" used. If a copyright > holder wants to > legally permit a publisher to print his poem, he makes a grant of > rights to > publish to the publisher, he does not issue a license to the publisher. There is no distinction between a "grant of rights" and a "license". Licenses grant rights. Agreements that grant rights are licenses. > You do not license poems, period. I have no idea what definition you are using of "license", but you most certainly do. Absent a license from you, the publisher could not distribute your poem. Notice that I do not make the obvious joke about "poetic license". > Except that OpenSSL is software and carries a license, a poem does not. Any copyrighted work can carry a license. Without a license, you cannot copy or distribute a copyrighted work (modulo the statutory exceptions). > > > > If you read copyright law, you will see that the right to *use* > > > > a work is > > > > *not* one of the rights reserved to the copyright holder. So the > > > > OpenSSL > > > > license can't restrict the *use* of a work any more than it can > > > > restrict > > > > breathing. > Then why is the "use" clause in both the SSLeay and OpenSSL license? > If it is unenforceable then the OpenSSL project should modify the license. I don't see it doing any harm, however, I do agree that it wouldn't be a bad idea to remove it. Who knows, perhaps courts will hold that it's enforceable, though I cannot imagine how. Note that the license does not even say that you must agree to it to use the work. (It says use is allowed if you agree to it, but that is not the same thing -- the default position is that you have the right to use it.) > That doesen't work if for example, the person buys a computer with > Windows installed, and on it there is a program with one of those > installers that was installed by the prior owner, and the new > buyer decides > to stay legal by simply going and buying a copy of the software > program and > not installing it, and just using the already installed version. I agree, and courts have so held (though AFAIK, only in dicta). See, for example, ProCD v. Zeidenberg and the example of a person who finds a copy of the software on the street, with the shrink-wrap already broken. > > Do you know of any cases where a license that required no > > positive act of > > assent was held to restrict use? > Interesting article here: > > http://www.infoworld.com/article/03/08/08/31FEfair_1.html > > "...I made the mistake of showing a visiting Cisco rep the 2611 router I'd > purchased on eBay for $1,200," says Mark Payton, director of IT at the > Vermont Academy, a school in Saxtons River, Vt. "Not only are they asking > me to pay to relicense the software, but they are expecting me to get a > one-year SmartNet maintenance agreement and to pay an inspection fee...." > > Note, that Cisco routers all come with an operating system called IOS. > Cisco sells their devices with licenses. They also sell their > routers -without- licenses but > they require people to obtain licenses. For example you could buy a 1601 > router (they don't sell this model any more BTW) that comes with IP-only > IOS licensed, or you can buy it with no license and then buy IP > Firewall IOS > license. > > Cisco claims that when a used router it sold, that whether or not > the seller > includes the license for it, they cannot sell the license, thus the new > purchaser > has to go out and get a new license for the used gear, from > Cisco. Some of > these IOS licenses cost over $10K depending on the router model. > > The only problem with all of this is that when you boot a Cisco router, it > does not require you to press a key or anything to accept the > license. The > routers come with IOS already on them. When you buy a more advanced > IOS license, all it is is a piece of paper in a box along with a > CDROM with > the firmware code on it. The firmware update process, via tftp, > once again > does not require you to click anything that is an acceptance. > > The same issue covers a lot of networking gear, as a matter of fact. For > example > Juniper also requires people to pay licensing fees for their firmware, and > they > do not require a click acceptance when updating their equipment. That is a very interesting case. I guess it would come down to whether the copy of the firmware on your router got there lawfully or not. If the firmware came with the router and you sold the router with the software on it and there was never any positive act of license assent, it seems to me that 17 USC 109 would apply and there is nothing Cisco can do about it. But again, this is a case where courts might find some way to side with Cisco. I would hope that courts would accept the response, "I did not license the software. I bought the router, and the software came with it." Companies should not be allowed to leverage copyright law to get rights to things that are not intellectual property. For example, my car computer has some software in it, but car manufacturers should not be allowed to claim that if I don't let a dealer do all my oil changes, I lose the right to use that computer software. Note that this is in effect the right the OpenSSL license claims. It claims you can lose the right to use a work you lawfully acquired if you fail to comply with its license terms, even if the only things you do are things that absent the license you would have the legal right to do. > That is illogical. If you cannot obligate someone > to a license terms unless they actively acknowledge it, by > clicking or some > such, then you cannot obligate a redistributor of GPL software to the GPL > license terms since they have never clicked or whatever. Correct! And it is perfectly logical. The GPL only applies to you if you want it to. If you choose to comply with the GPL's terms, it grants you some additional rights. If you do not choose to, nothing is taken away from you, you still have all the rights copyright law does not reserve to the author. The GPL is like a sign on a pile of dirt saying, "free, take all the dirt you want". It permits you to go onto the property where that would otherwise be trespassing. It permits you to take my dirt where that would otherwise be theft. But if you take my birdbath, I don't complain about you not complying with the terms of my sign, since a birdbath is not dirt, but I simply complain that you committed theft. *You* are the one who cannot point to the sign to justify what is otherwise not justified. What would be illogical is for me to say you violated my sign. This is because you have no obligation to comply with the sign -- it cannot make any demands of you. All it can do is give you some rights if you choose to comply with it. This is the FSF's position, and I believe it is not just correct but almost obviously so. > In any > case, this > is > just one lawyers opinion, and as I've already stated Eben Moglen > spends his > days sticking his nose into GPL infringement actions to insure > that the GPL > is never subject to a court decision on it's legality. It is not just one lawyer's opinion, it is the opinion of the FSF. See, among other things, the GPL FAQ. It is, however, a fair point the the FSF has no reason to make an argument that they do not need. But I challenge you to find any court opinion or legal opinion that claims a license can take away rights you would otherwise have absent the license even if you don't do anything that the law prohibits you from doing in the absence of the license. This is your claim -- that the OpenSSL license can take away the right to use that you would otherwise have, even if you don't agree with or to the license. 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