[gentoo-dev] Re: New license: yEd Software License Agreement

[Duncan <1i5t5.duncan@cox.net>]

Alec Warner posted on Sat, 28 Apr 2012 11:53:03 -0700 as excerpted:

> On Fri, Apr 27, 2012 at 12:02 PM, Rich Freeman <rich0@gentoo.org> wrote:

>> I'd argue that it is impossible to "accept a license" in the
>> first place.  It is possible to agree to a contract if there is
>> consideration on both sides and a meeting of the minds.
> 
> That doesn't mean you didn't / cannot accept, merely that some (all?)
> provisions are likely unenforceable in a court of law. I don't think
> EULAs have been ruled illegal yet.
> 
>> Copyright says you can't copy something.  A license says you might be
>> able to.  You don't have to "accept" a license to benefit it.  A
>> license does not restrict what a user can do, it restricts what the
>> person issuing the license can do (I can't sue you for redistributing
>> my code if I licensed it to you under the GPL).  Some licenses are
>> conditional - I only limit my own ability to sue you if you give people
>> a copy of the source for any binary you give them, and if you don't do
>> that I am now free to sue you.
> 
> Have you read the yEd license? I mean it does restrict what users can
> do:

> "The Software may not be used as part of an automated process. The
> Licensee may not reverse engineer, disassemble, decompile, or unjar
> the Software, or otherwise attempt to derive the source code of the
> Software."
> 
> How is that not restricting what the end user can do?

I believe he's viewing it in the context many explanations of the the GPL 
take pains to explain, namely:

Since copyright law prohibits copying (and in some cases, reading into 
computer memory for purposes of execution has been held to be copying in 
the context of copyright as well!!) without permission in the first 
place, it is as rich0 says, COPYRIGHT law that default-forbids doing 
anything at all with that string of binary data that happens to form the 
software.

As rich0 further points out, licenses modify that default-no state to 
allow the user some privileges they'd otherwise be denied by copyright 
law.  Many of them, including the GNU General Public License (GPL) and 
the yEd license, do so conditionally.  They allow the privileges IF AND 
ONLY IF certain conditions are met.

In the case of the GPL, these conditions, only apply to distributors, 
mere end-users are free and clear of all such conditions as long as they 
don't redistribute to others.  Further, the conditions on distributors 
are designed to ensure that end users of any derived programs get the 
same rights from the folks that distribute it to them.

In the case of most EULAs including the yEd license, by contrast, 
distribution is simply reserved as a right to the owning company 
(separate agreements are needed for distribution rights), and permission 
to copy and use the work under copyright is granted to the end-user only 
under rather severe conditions.  But from the viewpoint of copyright, 
it's simply an agreement by the owner to give you permission to copy and 
use under certain stated conditions, thus limiting their right to sue, 
but only to the extent that you're in compliance with the (in the case of 
most EULAs, conditional to an extreme) license (which is itself limited 
by laws that grant various "fair use" rights that differ by jurisdiction).

Thus, by this view, a EULA isn't limiting to the user, because all it's 
doing is granting (perhaps conditional) rights that would otherwise be 
reserved to the copyright owner only, under copyright law.  Someone can 
thus choose not to be subject to the license, or simply to ignore it 
entirely.  That's fine as long as they aren't doing something that 
copyright says they can be sued for.  But if they are doing something 
copyright says they could be sued for, and they draw the attention of the 
owner and/or their legal representatives, then to the extent that the 
license allows it, it's in their interest to claim the legal coverage of 
the license to prevent being sued by that owner/owner-representative.

Which is what makes relatively liberal licenses such as the GPL so 
strong.  Since they allow so much, with relatively light conditions, it's 
very strongly in the interest of parties who might otherwise be sued to 
comply with the GPL instead.  With rather more restrictive EULAs, not so 
much, since the EULA has such strict conditions.  In that case, it's far 
harder to comply with and far more likely that a copyright violator will 
be violating the EULA's conditions as well, so claiming the protections 
of the license doesn't tend to help as much, except to the extent that 
there really is a disagreement about the conditions of said license.

-- 
Duncan - List replies preferred.   No HTML msgs.
"Every nonfree program has a lord, a master --
and if you use the program, he is your master."  Richard Stallman