> Ah, so then your going to retract your statement that:
> "EULAs are agreements, you must actually agree to them to use the work"
> because clearly you can use the work here (the Windows software)
> without agreeing to the EULA.
No, that is the definition of an EULA.
To give an analogy, an "agreement" is something two people have agreed
to.
I can sell you a piece of software acommpanied by a piece of paper that says
"agreement" on it, but that doesn't make it an agreement until you agree to
it.
The 'A' in EULA stands for agreement. If it hasn't been agreed to, it's
not
an agreement. If it's not an agreement, it's not an EULA. An EULA is a type
of agreement.
To establish that an EULA controls a given situation, it must be
established that there exists an EULA that affects that user of that
product. The usual way you do this is by showing in some way that the user
accepted the EULA.
If you can't show that the user accept the EULA, it's not an agreement
with
that user.
> > There is no distinction between a "grant of rights" and a "license".
> > Licenses grant rights. Agreements that grant rights are licenses.
> Absolute rubbish. If this were true software would not
> have "software license" in it's text, it would have "grant of rights"
Tell me -- why would anyone ever agree to a software license? There is
only
one answer -- it grants them some right they wouldn't otherwise have.
Otherwise, there is no reason they would.
> > > 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.
> No, you don't. Perhaps you had difficulty reading so I'll say it
> again. I
> have my book contract for my published book that the publisher
> has published, and sold copies of. It does not use the word "license"
> in it. You do not license poems, period.
If you did not license the publisher to copy your poem, you can sue them
for copyright infringement. The only defense that would apply to them is
that they have a valid license.
> You can claim that "license" means "grant of rights" but that is
> just semantic games and is not true. Book publishing is not the same as
> software
> publishing. That is why they can print T-shirts with the DeCSS algorithim
> on them
> but when people distribute files with the DeCSS source code, they
> get sued.
I can't follow your analogy. I will point out that the common
definition of
"license" is "formal permission to do something" and the relevant legal
definition is "a private grant of right to use, copy, or distribute some
intellectual property".
> > Any copyrighted work can carry a license. Without a license, you cannot
> > copy or distribute a copyrighted work (modulo the statutory exceptions).
> Tell that to my publisher. They do not have a license from me to publish
> my book. They have a grant of rights to publish.
That grant of rights is a license. The definition of a license (that
permits you to do something copyright would ordinarily prohibit) is a grant
of rights.
> > 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.
> Arrgg!! This is why I told the original poster he couldn't do what you
> were telling him he could which sent us down this discussion to begin
> with - and now your backpaddling?
You never know what a court will do. Like I said, I'm not offering legal
advice and I'm not predicting the future. I cannot see any way to uphold a
use restriction in a copyright license that nobody has to agree to. I can
point to case law that supports this view. But can I promise that a court
won't rule a particular way, of course not.
I personally consider it highly distasteful when people claim they have
legal rights they do not have in an attempt to intimidate people into not
doing things they in fact have the legal right to do. I think the
restrictions on use in the OpenSSL license are an example of exactly this,
and it distresses me that people who claim to support free software would
argue that you need a license to get the right to *use* a piece of software
you lawfully acquired.
> > 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.)
> OK, that's an interesting hairsplit, and it is that kind of language why I
> said that the OpenSSL and SSLeay license was poorly written.
It's not a hairsplit, it's critical. The license does not attempt to
restrict use, possibly because the authors *knew* they couldn't restrict
use. So instead, it's crafted to mislead people into thinking it can
restrict use. I think it's calculated rather than poorly written. (Though
I'd rather not go into why I feel that way. You can take or leave my
feelings as you please.)
> From a practical standpoint, you want to at least get software support
> on any used router, (smartnet) to make it elegible to be upgraded, since
> almost always the IOS version that comes with a used router is very very
> old. Smartnet allows for updates to -licensed- IOS. The question though
> is if the original owner of the router bought the router, then bought the
> IOS license for it, then sold the router, can they sell the IOS
> license? I
> think the IOS license language in the license itself states the license
> isn't
> transferable - but then again, the original owner of the IOS license
> does not have to do anything to acknowledge acceptance of the license
> terms for the IOS.
I would hope that courts would hold that whether IOS was sold (and
therefore default copyright rules like first sale apply) or licensed (in
which case, the license terms would be enforceable) is a question of fact
subject to the "duck test". Many factors weigh in favor of a finding of
purchase rather than licensing. For example, the absence of regular payments
or a defined license term, the absence of negotiation or an actual
agreement, and the fact that the software is necessary to use and included
with a device that was purchased.
> Then there is no point to the GPL since someone can merely write a module,
> and distribute it with the GPL program and a copyright that says
> the module
> is
> not under the GPL and is only free for non-commercial use. Then later on,
> someone who incorporates the GPL program
> and the contributed module in a commercial program, even if they make all
> the source available per the GPL, could be sued by the module copyright
> holder for violating copyright.
>
> Yet, the FSF claims that the GPL insures that contributors to a GPLed
> project cannot turn around and sue you for infringement, so that protects
> you if you use GPL software.
I'm not sure I follow your example. Certainly someone can distribute
GPL'd
software along with software that's not GPL'd, so long as they are not a
single work. A person who used both of those works would not be using GPL
software, they'd be using a mix of GPL and non-GPL software.
If you choose to release something under the GPL, you lose any right to
restrict use by people who obtain a copy of the software from someone else
under the terms of the GPL. But certainly if you don't place software under
the GPL, you still retain all the restriction abilities copyright law gives
you.
The GPL cannot affect software not placed by the copyright holder under
the
GPL. Nobody, as far as I know, claims that it can.
> 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.
> I already did - the Cisco example quoted earlier.
Cisco does not claim any such thing in a legal opinion. In fact, I
haven't
seen any legal opinion from Cisco on this matter, so it's not clear what
they're claiming. They *might* claim you haven't lawfully acquired the work.
They *might* claim you are interfering with their agreement with the
original purchaser. We have no idea. They might just be making vague claims
and threats to trick you into making a license payment, just as the OpenSSL
license makes vague claims to make you think you don't have the legal right
to use it. Who can say?
> Perhaps it isn't a court opinion - but the effect is the same. Cisco is
> obviously
> making money off those software re-license software licenses they are
> selling.
They haven't issued any formal explanation of why they think the rules
apply. We don't know what their legal opinion is. Similarly, we really have
no idea why the OpenSSL license claims it can restrict use (or even if it
does for that matter).
> > 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.
> No, that isn't and wasn't my claim. My claim was that a court could use
> the OpenSSL license to take away the right to use that you would otherwise
> have, even if you don't agree with or to the license. And my advice was
> that the risk of this wasn't worth it, thus the OP should take steps to
> separate his program
If the OpenSSL license can do that, so can Cisco's. If Cisco's can't do
that, neither can the OpenSSL license. What kind of world do you want to
live in?
DS
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