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Court Finds Online Software License Not Binding 137

An Anonymous Coward writes: "The U.S. District Court ruled on Specht v. Netscape Communications Corp., 00 Civ. 4871, saying that a license that users don't even have to see before downloading online free software isn't binding. Calling these "browse-warp" licenses (as opposed to click-wrap), the court found that since usersdidn't have to look at them, users didn't assent to the terms. Netscape's use of SmartDownload, practice of harvesting information through SmartDownload with out an effective license is now suspect as since there is no license, and no assent, there is no agreement. See a report of the case at Law.com Or try to find the rulings at Find Law."
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Court Finds Online Software License Not Binding

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  • by Anonymous Coward
    If people can be assumed to have never read or agreed to the license, then licensed open software is in the same boat as public domain software regarding waiver of liability and guarantees, etc. (I think it is already, but many disagree with me.)

    I wonder how much I could collect from the FSF for all the damage their buggy software has done to me? They have no evidence that I have ever waived my rights to sue them for damages, right? Or even read the GPL.

  • by Anonymous Coward on Saturday July 07, 2001 @10:41AM (#101533)
    Perhaps there's another way to view this. Instead of us all cheering "hooray, we're free!" we should be saying "how are they going to MAKE it legal."

    If my understanding of the ruling is at all correct, the license was not guaranteed to be read, and therefore was not binding. So, lets say the installer for software is no longer available without clicking through.. The file does not even exist per se, you have to go through a CGI to be served it.

    Will this be the death of freely available to download software? Will everything be wrapped in a guaranteed license?
  • Precisely. The GPL gains all of its legal force from copyright laws; the gist is that, if you distribute or modify GPL'd software in ways that contradict its strictures, you are in violation of the author's copyright. When authors no longer have their copyright, they lose their right to enforce the GPL.

    A couple of points, though: first, there is absolutely no software in existence which has passed out of copyright through expiration (though authors have released software into the public domain); second, copyright is 75 years only for works that are written 'for hire' (that is, produced by a corporation as part of its business). Works generated by individual authors, in which category most GPL'd software falls, have copyrights that extend 50 years beyond the death of the author.

  • No, BSD is more restrictive than the public domain. There will be *no* license when the term expires, none at all, and none will be necessary. Anyone can use it, for any purpose, in whole or in part. Copyright just doesn't exist for it anymore. Of course, the various moneyed interests that have copyrights coming up to their expiration (notably Disney with their copyright on the first Mickey Mouse cartoon, which will bring down their trademark on that character) keep successfully bribing Congress to extend terms retroactively.
  • by Old Man Kensey ( 5209 ) on Saturday July 07, 2001 @10:40AM (#101536) Homepage
    mindstrm wrote:

    The silly part is, assuming they can say they didn't see the license, what gave them the right to use the software then? They should know it's copyrighted...

    Copyright is not (for the most part) about use. It's about reproduction and distribution.

    This is why there was (and is) so much uncertainty about "automatic" licenses that limit terms of use -- such terms are outside the scope of copyright law. The only way you could claim legal justification to enforce those terms is to claim that the license is a contract that the user has agreed to. This argument was never, that I know of, tested in court, so a coalition of big players lobbied for UCITA (twice, if you count Article 2B as a UCITA precursor) -- UCITA explicity recognizes shrink-wrap licenses as binding legal contracts.

    Copyright law for decades has more or less explicitly (through judicial review) recognized the right of a legitimate owner of an artifact to use that artifact in any way that does not otherwise violate the law. In fact, at its base, copyright law allows anyone to reproduce, or to distribute, but not both. I am free (in theory) to make a thousand copies of a book, and keep them for myself. I am free to buy a thousand books and give them away or resell them. What I am not free to do is buy a book, make copies, and distribute the copies.

    Of course as we all know, various industry groups have lobbied for and gotten various medium-specific additional restrictions -- witness the aforementioned UCITA, the DMCA, the Audio Home Recording Act, etc.

  • Well, if you want to be pedantic, then yes, I'll concede that the GPL conditions under which you can make and distribute copies does constitute a "constraint" on that particular form of use.

    However, I hope you would likewise concede that shrinkwrap "agreements" are considerably more onerous than the GPL:

    • The GPL permits unlimited copying and distribution under certain conditions. Shrinkwraps permit no redistribution whatsoever, under any circumstances.
    • Apart from the copying conditions, the GPL makes no attempt to constrain any other use of the software. Shrinkwraps purport to seriously constrain many uses, and forbid others.

    Even if, as a software consumer, copying and redistribution are important to you, the GPL is vastly better than commercial shrinkwrap "agreements". And it's cheaper, too!


  • by ewhac ( 5844 ) on Saturday July 07, 2001 @10:40AM (#101538) Homepage Journal

    This is absolutely fantastic news. I find it astonishing that any court would consider these so-called "contracts" valid at all, but we have to take our victories where we can. This could be "camel's nose in the tent" that will lead to the invalidation of all shrinkwrap and clickwrap "agreements". For an explanation of why shrinkwrap agreements should not be allowed to exist, see my five-year-old editorial [best.com] on the subject.

    Those who worry that this decision may weaken the GPL, or any other Open Source/Free Software license, need not fear. Shrinkwrap "agreements" purport to constrain your right to use the software, whereas the GPL simply constrains your ability to copy and redistribute the software. In other words:

    • GPL: You may use this software in any way you wish, but copyright law prohibits you from making and distributing copies. If you wish to make and distribute copies, here are the terms you must agree to.
    • Typical shrinkwrap "agreement": You must agree to these onerous terms and conditions, or we won't let you use the software you just paid for at all.

    Which one is the product of a less childish mind is left as an exercise for the reader.

    The effect of striking down a shrinkwrap "agreement" would be that the default terms of copyright law would apply, which is that you would still be free to use your software, and you still wouldn't be allowed to make copies of it, but all the other "rights" the vendor granted themselves would vanish. This means that the spyware the vendor installed on your machine without your consent would now be actionable.

    The effect of striking down the GPL would be that you'd still be able to use your copy of the software but, legally, you wouldn't be entitled to make and distribute copies anymore. However, the practical effect would likely be nil. By releasing under the GPL, the authors are representing that they won't go after you if make and distribute copies of the source. It is likely they would continue to make that representation even absent an enforceable GPL. And they would still have the right to go after people who distribute binaries absent source (since binaries are considered a protected derivative work). That means Linus could still go after Microsoft -- and, to be fair, any other organization -- that tried to loot Linux.

    All in all, this decision is a good thing for consumers and users everywhere.


  • No problem. If all you want to do is _run_ the software, or give copies to your friends, then you are OK. If you want to modify it, then you would most likely open the source code and at that point see the notices about the license.
  • Yes, but who is going to want to use a 75 year-old copy of gdb?
  • I don't know what the answer is, but common sense would dictate that at a minimum you should be allowed to run the program on one system (at a time). In the days when systems only had floppy (or caseete) drives it was probably simpler as you ran the program from the distribution media rather than creating a "copy" on hard drive and running that.
  • Everyone else seems to be making excuses here. To me it is fairly simple. No free software packages that I have ever downloaded make, me click and agree to the GPL. I wont even know it is there unless I go look for it. The author never makes me click and bind to anything. If I am lucky there is a file called GPL or license. If I never look at it. Oh well.. It should be noted that this decision will probably get appealed to US Supreme Court. This decision by a federal judge has very wide implications on what is required for people agree to a license.
  • As much as I love the GPL, i don't see how it is defensible to require releasing the source to your mods if you aren't even distributing the binary. I mean, that seems to violate an important element of privacy... I should be able to modify GPL code and use it on my system for my own private use without having to release it. IMHO the GPL would be going too far if it were to include such a clause. Anyway, if this were added, the GPL would then be subject to this ruling, as copyright can't possibly forbid unreleased modifications, that would be an extension via a license of the kind we all hate.
  • by Musc ( 10581 )
    And since when do you need permission to use software?
    Copyright only controls copying, and i'd say
    downloading off netscape's servers is most
    surely a legit form of copying, and once you
    have legally made yourself a copy, there is no
    law to prevent you from using it. Even if you
    love copyright, you must admit that this is
    the way it should be. Requiring users to implicitly sign a contract to use software is a grievous extension of copyright laws far beyond what is required and far beyond what is reasonable.
  • US Copyright law allows you to run software providing you have legally obtained a copy of it.

    ...it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner...

  • I've seen so many posts in this thread saying that the GPL is better because you don't have to click through.

    I guess nobody else here has ever installed Activestate Perl then...

    I'm wondering if it's just because Windows Installer requires a 'clickthrough licence' bit that they show it - it's the real GPL though.

  • Thanks I just ordered the book...

  • I don't see anything really good about the decision, but I don't see anything really bad about it, except the implicit acceptance that click-wrap and shrink-wrap licenses were valid. And if what was said earlier is true, then that is merely an acceptance of currently existing laws. But I sure wish that had been avoided.

    And since it's based on California law, it doesn't apply outside of that state.

    Caution: Now approaching the (technological) singularity.
  • Do you remember the attempt a few years ago, when a bunch of Linux users attempted to return their unopened copies of Windows. Seems that nobody was willing to accept them back. MS said contact the vendor. The vendor sold them as a part of a package with the computer mfg. The computer mfg. had a contract with MS that said they would sell a copy of Windows with each machine (in return for a steep discount in the pricing). Nobody would accept them back. MS would have been obliged to take them back from the mfg., but then they would have raised their price. The mfg. said that it was a part of the package that they were selling, and wouldn't consider taking them separately. The vendor was (often) selling a sealed box, that had everything already inside.

    So the license from MS promissed to take it back, if it was returned by the person that it was sold to. But that was Dell, or Compaq, or ... It had no connection to the end user. The MS EULA is one where MS PROVIDES NO GOODS. The goods are provided by the vendor, so you don't have any direct right to challenge MS.

    This would appear to make the contract totally invalid, but if so, how is it able to conduct random searches of businesses and government offices?

    Caution: Now approaching the (technological) singularity.
  • I tried to explain to the lawyer at work why I thought that a license was bad. He didn't argue that the license didn't say what I thought it said, what he said was "I'd like to see them try to enforce that!", and the contract was signed.

    If this is a correct attitude, then it means that rights are progressively being restricted to those who can afford lawyers.

    If this attitude is, as I believe, incorrect, then it means that even those in charge of safeguarding the companies (govt. in this case) don't pay attention to software licenses, as the laws and circumstances that make them more binding increase.

    This was one of the events that caused me to begin campaigning for Linux, but so far no converts at work (though a few have started to pay some attention).
    Caution: Now approaching the (technological) singularity.
  • That clears that up :). I was worried for a second there :)


  • by sterno ( 16320 ) on Saturday July 07, 2001 @09:58AM (#101553) Homepage
    Um, when was the last time you had to click on a license agreement when you downloaded GPL'd software? If they can't be held to the terms unless that happens then this opens up a gaping hole through which a lot of software can get hijacked.


  • Clearly theoretical in my case, but suppose I do not understand the language in which the license is written, or even the words "I Agree" that I clicked on to get the program to work. It's not hard to imagine that even illiterate people would quickly learn that the program does something if you click on the highlighted box and does nothing if you click on the other one. If this was the case and they were using software without being competent to even read the license, let alone agree to it, how can they possibly be bound by its terms?

    I think this is a fundamental problem with trying to automate contracts. It clearly couldn't happen if all parties involved were conscious beings.

  • by Froomkin ( 18607 ) <.ude.imaim.wal. .ta. .nikmoorf.> on Saturday July 07, 2001 @10:36AM (#101555) Homepage
    The full text is online in .pdf [uscourts.gov] at the U.S. District Court for the Southern District of NY.

    While this is certainly an anti-"web wrap" decision, it's important to understand that the court gets there in part by suggesting that "clickwrap" is OK, then contrasting webwrap unfavorably with clickwrap.

    A.Michael Froomkin
    Professor, University of Miami School of Law
    Coral Gables, FL, USA

  • There is no "de facto" license for software. In the absence of an agreement or grant of permission, the full scope of copyright law applies.

    That means you may (in the US at least) use the program, make archival copies of it for your own personal use, and reverse engineer it (some jurisdictions don't allow the latter).
  • Thanks, Professor, for the PDF URL... I think it's ironic to note that the law.com site in the original article required cookies in order to view the page.... whilst the Professor provided us the link and the opinion for free.

    Free as in speech wins again... and in the long run will probably save our butts, come the revolution...

  • No, the point is, what about packages that do NOT prompt you to read the license, you don't even know if there IS one until you look.. but you know the download was free.

    The silly part is, assuming they can say they didn't see the license, what gave them the right to use the software then? They should know it's copyrighted...
  • You made my point for me, I wasn't very clear.
    If it's offered as a free download, it's reasonable to assume you can use it. It's also reasonable to assume that it's copyrighted, and that you can't modify it.

    What I'm saying it, it doesn't mean that your stuff is automatically public domain if someone doesn't see the license but uses it anyway.
  • Part of the problem is that there are just way too many variants of licenses, whether OSS or otherwise. Part of the problem is that what browse-through license are is that they are actually a service level agreement e.g. I guarantee such a level of performance, provided you stay within the nominated activity envelope. Given the inherent complexities of computers plus the hair-splitting legal mumbo-jumbo, along with zilch consumer education and you basically get a system which treats license as no more than a disclaimer. With software, it is somewhat easier as you can split them into classes (GNU, BSD, Mozilla) with specific instances (Artistic, etc) with stated variations of terms (e.g. Alaladin is GNU-like but with temporal phase-shift, etc). Unbfortunately the internet world has not really standardised on an equivalent unless you count the MSFU (see the Sexual Practices of Licenses at http://slashdot.org/comments.pl?sid=01/06/21/18102 58&cid=66) which changes every week.

    How well can you define a service? Using RDF you can probably specify the functional aspects but how do you nominate remedies for down-time, contacts for contingencies, independent auditing of claims (99% availabilty, etc). Ultimately you're probably see network access like a utility once the standard performance metrics are defined (MByte/sec up/down, latency (up/down) disruption distribution function, etc), and software quality is improved to such a degree that you can provide customer guarantees. But I don't see this happening until there's more localised competition rather than the big media titans duking it out.

  • I wonder if that means that by not accepting the license agreement, you fall back on copyright...

    which expires in maybe 75 years... So if you wait 75 years, the GPL stuff reverts to the public domain.

    So GPL + 75 years ~= BSD license?
  • by Snowfox ( 34467 ) <snowfox AT snowfox DOT net> on Saturday July 07, 2001 @12:11PM (#101562) Homepage
    ...I'm turning off my monitor during the license agreement portion of my next Windows install.

    "I didn't see a thing. I only clicked the mouse a few times thinking it might turn the display back on, your honor..."

  • Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement

    Using the same argument reading a book or listening to a CD is "copyright infringement"...
  • No, this does not open up a hole for GPL, because there is a fundamental difference between GPL and most other licenses. GPL grants you rights you would not normally have, whereas other licenses try to take away rights you normally have.

    Also the GPL is about actual copyright law, most of the other licences attempt to pervert copyright into "useright".
  • by mpe ( 36238 )
    By default, all rights are reserved to the author.

    Except that "copyright" does not allow the author to claim any arbitary right. Otherwise the DeCSS case would be about the writers sueing the MPAA for copyright infringement. Had they written a licence which prevents the MPAA and (and any government official in the USA) from even looking at their program.
  • Copyright does not require you to agree; it just is. The GPL allows a relaxation of copyright; you don't need to agree for it to appy as it is the AUTHOR who is relaxing their rights.

    No they are granting you a licence to distribute subject to specific conditions.
  • Here's how it works: You have to copy software from a disk to RAM to use it. This copying infringes copyright. Therefore, you need a license to do it legally.

    In order read a book you must "copy" the text onto your retina, thus you need a licence to read. In order to play a CD you need to create "derived work" (as sound waves).
  • by mpe ( 36238 )
    As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.

    You are seriously claiming that software has better "technobabble" than biology? Which is really what is going on here.
    All you then need is a judge too stupid to dismiss a case they don't understand.
  • Very little GPL software was made under the 'work for hire' rules. In the case of software which is made by an individual, or individuals, even if they sign it over to a corporation, the life + 70 years rule would apply.
  • But usually all source files have /* This file is licenced under the GPL */ There's no way they a user could look at the source and not see that license.
  • The "GPL is a distribution license" is a tired distinction as well. Under the copyright act, you may not replicate, distribute or make derivative works. Courts have long held that the loading of a program from disk to ram for execution constitutes exercise of the replication right.

    If you had no grant of any right to use, you would be violating copyright just as surely as if you distributed without consent.

    Of course, GPL *DOES* state that "The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program)," so you are perfectly OK.

    But this is because you have been granted a license to copy the software, at least to the extent necessary to run it.
  • This is absolutely not true. Under United States law you do not need a "license" to use a program that you have obtained legitimately.

    Of course it is true. Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement. Two exemplary Circuit Court cases are MAI v. Peak Computering and Triad v. Southeastern. I'd be pleased to provide references on request, but you can probably find what you need to know using Google.

    Furthermore, you have the right to transfer
    or to sell that copy (First Sale doctrine). What copyright restricts is the ability to make extra copies for distribution.

    Section 109 does not provide a right to use. See the cases above.
  • I *also* through the courts upheld that "incidental copies" were legal.

    As noted, if by incidental copies you mean copies made loading and execution of the program, no. The MAI and Southeastern cases have settled this question quite clearly.

    If by incidental copies you mean copies made for archival or adapting to new hardware purposes, this first requires that you own a lawful copy. Many licenses expressly state that you obtain a license only, with title to the copy remaining with the licensor precisely for that reason. Section 117.
  • No legal action could ever arise because the license states that you may freely run the software. Thus, you have a license. If it did not, you would not have any intrinsic right to do so.
  • by werdna ( 39029 )
    I don't make up the law here, or argue with you what the law should be. I read the statutes and cases and today I am here to say -- this
    *IS* what the law *IS*.

    As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.

    As to playing a CD, you bet. If you purchased or lawfully obtained possession of a copy, you will be fine by implied or actual license. If I make a copy of the CD, I commit infringement by replication; if I give it to you as a birthday present, I commit infringement by distribution. So far you are clean. Put it in your CD player and hit play, and guess what? You're a prospective defendant.

    A vast number of people have been sold ersatz copies of pirated software, many of whom have had no knowledge that the original-looking boxes, labels and pirates certificates and stamps were entirely counterfeit. Guess what? They are all guilty of infringement, a strict liability offense.

    You don't have to like this, but make no mistake: this is undoubtedly the way that it is.
  • If you say so -- I'm fairly certain of my position nevertheless. In any case, it is plain beyond cavil, clear as can be: use of software under ordinary circumstances constitutes an exercise of the replication right. Therefore, use without consent constitutes copyright infringement.

    Nothing you have suggested militates to the contrary.
  • by rjh ( 40933 )
    These decisions hold very little weight

    On the contrary--they hold tremendous weight! An appellate court's role is strictly limited: did the defendant receive a fair trial? Is the law Constitutional? Was the law fairly applied?

    Appellate courts don't revisit the facts of the case. They only evaluate the propriety of the trial, nothing more.
  • I would hope that you can not give up your "fair use" rights by contract just as you can not sell yourself into slavery.
  • I heard a theory that time has 3 dimensions. I don't remember the details, though.
  • Has that ever been taken to court recently? I highly doubt that a sane judge would award damages from someone who gave you software, and the source code to check if you wanted to, for free.
  • Better: get a virus that swaps the function of the "I Agree" and "I Disagree" buttons.
  • by Vhalros ( 54396 ) on Saturday July 07, 2001 @11:57AM (#101582)
    Well, as several people have already noted, the GPL is a little different. It's based entirly on copyright, and if you want to copy some ones copyrighted work (and, btw, you don't have to do anything to make your works copyrighted) you damn well have to abide by their terms(within reason). Similarly, you can't make a copy of a book and sell it on the net because the book never made you click "I Agree".
  • I *also* through the courts upheld that "incidental copies" were legal.
  • Sites just might start resorting to putting 'I Agree'/'I Disagree' links on their index pages (shudder!) as the only legal way to get their audience to agree with their terms of use.

    That might actually be a good thing. If a company wants to screw you, then they can at least be honest about it. Likewise, if a software manufacturer wants to make an abusive EULA binding, then they should require you to sign a contract to that effect before you buy. Making consumers realize how preposterous the terms of these "contracts" are might be a good way of getting them eliminated.

  • don't erase, replace with BSD license. I would say GPL, but source isn't availabl;e usually, which rules out the GPL :)

  • That's probably why they call it copyright as in
    right to copy.
  • Isn't it true that no software maker has succesfully defended a software license in court, in the USA?

    There is much more heat than light in discussions of software licenses on the net.

    OBJlink: software law [google.com]

  • ...while opening software packages, I'm not bound to the license?


    I love the courts sometimes.

    Interested in weather forecasting?
  • Couldn't I just erase the whole thing, write my own agreement, and click "I Agree".

    I always do that. As far as I'm concerned, that's the license that binds me. They offered me a license, I offered an alternative license, and they accepted it. If the license was not negotiable, then why was it put in an editable textbox?

  • If you've got a lot of money to burn and want to try hand have shrink wrap licenses declared unenforcable, here's a recipe (remeber that IANAL):

    -Buy a commercial software (ie: Microsoft Office) title at a store that will not allow you to return/exchange opened software (ie: CompUSA)
    -Decide to not agree to the license.
    -Try to return said title and fail.
    -Contact the publisher and say "Hey! I don't agree with your license. It says to return the software to where I bought it from. They won't take it back because I opened it. What are you going to do about that?" and have them say "Humph! Nothing!"
    -Sue the publisher over the license.
    -Appeal the appeal.

    With a little luck, you'll get shrink wrap licenses ruled invalid. Then watch Congress pass a law that says that they are...
  • What is important is the part of most license with the disclaimer that releases the author from all responsibility if the software fubars something. You don't need to read the source to run the software, and that means that most people don't even see it. Therefore, it could be said that it doesn't do anything to keep the author out of legal trouble.
  • But there is still the possibility. If you are not complete and consice, something like this may happen. Its not like it takes a lot of effort to do something like this, so its better safe than sorry.
  • While that may be good for unsavory, shady licensing schemes, it could be bad for GPL'd software.

    Nonsense. The GPL is not a use license, and it does not even pretend that it has to be agreed to for use. The license in this case was one that restricted the rights of the user. The GPL is one that offers more rights than the user otherwise has under the law. It's apples and oranges - the two licenses have nothing in common other than being referred to by the word "license".

    "That old saw about the early bird just goes to show that the worm should have stayed in bed."
  • No, they're in Copyright Law. If someone writes a program without a license, it defaults to copyright.
  • "...this license will terminate immediately upon the consumer breaking any portion of this license..."

    This 'license' refers to your right to use the software, and to have it on the data carriers you possess. If you break (a) part(s) of the agreement, you can't use the software anymore, as you have lost the license.

  • What is more selfish? Constrict distribution only to people who share, or refuse to share anything you add to a project?

    - Steeltoe
  • by OmegaDan ( 101255 ) on Saturday July 07, 2001 @10:55AM (#101597) Homepage
    Who moded this guy a troll? its a good point ...

    But the difference is, the GPL grants you EXTRA rights above and beyond copyright, and EULA's seek to take rights away ...

  • No, this does not open up a hole for GPL, because there is a fundamental difference between GPL and most other licenses. GPL grants you rights you would not normally have, whereas other licenses try to take away rights you normally have.

    Suppose someone were to violate GPL, and the copyright owner sued them. The copyright owner would NOT be claiming that the terms of GPL were violated. The copyright owner would sue claiming a copyright violation.

    It is the defendant who would be bringing up GPL, as a defense to copyright infringement.

  • Of course you can give up "fair use" rights by contract. What's wrong with that?
  • would this any way apply to the gpl? someone else mentioned that MS licenses are inside abox that you can't see until you purchase the software but the GPL is just as hard to find. I read the GPL once or twice but when was the last time you read the COPYING file before downloading and installing GPL software. it seems that just as we could use this in some way against MS, MS could use it againt us. "We never saw the license before we used the GNU tcp/ip stack in windows so it doesn't apply in our case."
  • Could this be applied to the terms and services links that are common at the bottom of some websites?

    You're probably right that they're not gonna be valid unless you have to click an affirmation of them. However, most that I've seen are like a short "Copyright Law for Dummies."

    The ones that do more than reiterate copyright law, usually have some interactive feature that they're trying to regulate use of. They would be wise to have a click-through Terms of Use page whenever someone goes to create a login to use those features. Ones that allow you to use interactive features anonymously get what they deserve and having an agreement for their main page won't help them.
  • by cybermage ( 112274 ) on Saturday July 07, 2001 @10:16AM (#101602) Homepage Journal
    Kinda makes me wonder what sort of De Facto license there is on software. As one of the millions of people who've downloaded software under this arrangement, do I still have the right to use it? Is Netscape simply out of luck on some provisions (e.g. do not redistribute)? I'd hate to think that I have no rights regarding the software. Likewise, I'd hate to think Netscape has no rights. Where does a decision like this leave us?
  • In the context of license violations and license enforcability, it is a distribution license. While the right to run the program is implicitly granted through the license to copy, that is only an incidental feature of the GPL. Giving anyone the right to run a program could be accomplished with a single sentance. No legal action would ever arise from a person simply running a GPLed program because it is not possible to violate the license in that way. GPL violations can only arise when a transfer of GPLed code (including object code) has taken place between two parties. So, while you may technically be in violation of the law by running a GPLed program without first agreeing to the license, it is legally irrelevant because no one will sue you for it.
  • by MrGrendel ( 119863 ) on Saturday July 07, 2001 @10:16AM (#101606)
    Remember that the GPL is a distribution license, not a usage license. The assumption in copyright law (as I understand it) is that you never have the right to redistribute a copyrighted work without permission. If a person redistributed without bothering to read the license and a court case resulted, the judge would probably treat it as a copyright violation, not a license violation. As the GPL states, nothing else gives you the right to redistribute or modify the code, so a failure to agree to the license terms via a failure to read the license means no permission to distribute was ever granted.
  • The GPL isn't a useage license, it's a copyright license. It doesn't take away any rights you have, unlike the licenses the article talks about, but rather, grants you rights. Different beastie.
  • The default clauses for software differ slightly from state to state, but are mostly pretty reasonable. You of course have the usual copyright permissions, which basically say you can't redistribute without permission, but otherwise don't much limit your use or disposal of the software. Until a few years back, there was a legal school of thought that you needed explicit permission from the copyright holder to run it, but Congress has since specified that this is not in fact true; in the absense of other agreements, you have the right to run any software you legally possess.
    This, incidentally, is one reason why UCITA is so pernicious: UCITA changes many of these defaults to fairly complex and usually undesirable terms which would practically force anyone who wants to distribute software to hire a lawyer and make sure a binding license agreement is attached (and the GPL wouldn't count, because it is a licence on redistribution, which you don't have to agree to before downloading and using software).
  • Or, almost nothing. This is a federal judge, not an appealate court. These decisions hold very little weight.

    But, this does weaken the glance wrap licence agreements. The click wrap, where you are required to click ok (such as on Windows) will be upheld given this standard. But there is another argument to that -- since Microsoft has refused to make refunds, will that click-wrap agreement be found to be void.

    The other thought is for 3rd party computer usage. You get a system from the company, your IS person agreed, not you. They may have agreed for the company, but what about your personal data (if you are allowed personal use of the computer)? If you use a system at a CyberCafe, public library, school? The agreement to indemnify, not reverse engineer, etc. would be to indemnify the school, etc -- Not the software publisher!

  • If you use the school computer running Windows XP to design and build your final class project, lets say, Linux 9.0. Then as about to blast the CD the computer due to a bug known to Microsoft, wiped everything including your tape backup. Because of that, you had to retake the semester, loose $50k in lost salary because you had to delay your new job. Can you file a lawsuit? You didn't agree to waive your rights in the install-wrap agreement.

    Another scenario. You are at the libray, you decided to sell a stock at at $150/share. As you press the submit button, the system crashes. You reboot, now the shares are $95.

    Another. You are at the library. They have Cyberpatrol loaded. You bypass cyberpatrol and ftp the files to your computer at home. You then reverse engineer the product and make post the list on your website and publish a program to decrypt the next list. Where did you agree not to do that? The people at the library did, but you did not.

    Can you be expected to abide by terms of a contract that you never seen and never been made aware of? No, according to this decision.

  • I wonder if that means that by not accepting the license agreement, you fall back on copyright...
    The GPL uses copyright laws so your point even stands when you do except the GPL license.

    What I meant was that you fall down on the default copyright restrictions, being that you cannot do anything with the code.

  • by Drone-X ( 148724 ) on Saturday July 07, 2001 @10:06AM (#101618)
    You might want to try reading the GPL:
    5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
    In other words, if you do not accept the GPL you're granted the same rights as the default copyright, which is more restrictive than the GPL.
  • But not all software has the media separately wrapped`. In many cases the box conatins an unwrapped jewel case. And most places will not allow you to return opened software. I believe that here in Canada, stores are required by law to not accept returns on opened software, so we're screwed when the license only becomes viewable after the purchase becomes irrevocable.
  • Copyright does not require you to agree; it just is. The GPL allows a relaxation of copyright; you don't need to agree for it to appy as it is the AUTHOR who is relaxing their rights. If you don't agree then normal copyright appies and you can use but not copy.

    Basically, this does not affect the GPL, just as it does not affect copyright.


  • I'll put it a different way since I wasn't very clear:

    The author is saying "This is copyrighted to me but I'll let you off if you do this..."

    If you don't agree then you don't get to ignore copyright since the law does not require your agreement to enforce copyright.

    The real difference between GPL and EULA's is that the latter generally try to restrict you while GPL is giving you more rights. You don't need to sign anything to get more rights.


  • Unlike all those celebrating the impending death of click-wrap and shrink-wrap agreements, I beg to differ.

    From the judgement [uscourts.gov] :

    For example, Netscape's Navigator will not function without a prior clicking of a box constituting assent.Netscape's SmartDownload, in contrast, allows a user to download and use the software without taking any action that plainly manifests assent to the terms of the associated license or indicates an understanding that a contract is being formed.
    What we may see after this is even more aggresive, in-your-face presentation of license agreements. Sites just might start resorting to putting 'I Agree'/'I Disagree' links on their index pages (shudder!) as the only legal way to get their audience to agree with their terms of use.

    2*b || !(2*b) is a tautology
  • by McChump ( 218559 ) on Saturday July 07, 2001 @11:18AM (#101637)
    1) The judge applies the California Commercial Code to determine issues regarding the formation of the licensing contract. However, that Code only applies to "goods," which are defined as "moveable, tangible objects." It is by no means certain that this definition covers software distributed over the internet.

    2) The judge focused largely on the peculiar mechanisms of Netscape's website that distributed SmartDownload to determine that the parties did not assent to the terms contained in the license, because they were not required to specifically assent to anything prior to downloading the software. This contrasts completely with Microsoft's WindowsUpdate, for example, which specifically requires a click-through assent and affirmance prior to download. This distinction will make the impact of the decision limited at best.

    3) Finally, this issue arose in the context of a motion to compel arbitration filed by Netscape. It is not completely clear that the plaintiffs utterly failed to assent to any restrictions on their use of SmartDownload, but only that they did not unambigously assent to the licensing agreement that provided for arbitration. This posture could further limit the impact of the decision.

    All in all, I'm not really sure this one was worthy of a front-page /. story. The headline certainly doesn't comport with the actual text of the decision.

    --J (yes, IAL)
  • Perhaps this court is ackowledging that this situtation is wrong, and that there should be sufficient friction against entering a contract to show the user knew (or should have known) that's what he was doing. Today, that friction is generally signing one's name with a pen. One should not be able to agree to even the most trivial thing with only a click of a mouse.
  • what gave them the right to use the software then? They should know it's copy righted...

    [My emphasis, of course]

    AFAIK (IANAL, AFAIK), the fact that there is no license attached to a piece of software you have obtained (been given) does preclude you from using the software. Copyright law still expressly prohibits you from copying the software for distribution, but I don't think that was the problem in this case. People weren't makeing copies of the StartUpdate installation files, they were just using the software, which is a perfectly legal action in the absence of a license.

  • "the fact that there is no license attached to a piece of software you have obtained (been given) does preclude you from using the software."

    Not true. US law defines running software (or copying it into memory) as fair use right.

    Oops... that should have been "does not preclude you from using the software." (Thanks)

    So US copyright law expressly permits you (under fair use) to copy software into memory in order to run it. In the abscence of a license which might prohibit you from running that software under certain circumstances, then, you should be free to use the software as you like.

    And copyright law still prohibits you from making further copies of the software for distribution.

  • The default clauses for software differ slightly from state to state, but are mostly pretty reasonable. You of course have the usual copyright permissions, which basically say you can't redistribute without permission, but otherwise don't much limit your use or disposal of the software. Until a few years back, there was a legal school of thought that you needed explicit permission from the copyright holder to run it, but Congress has since specified that this is not in fact true; in the absense of other agreements, you have the right to run any software you legally possess.

    Well, then the usually present EULA clause stating (to the effect of anyway, for some reason I can't find any EULA's right now...damn GPL! =))
    ...this license will terminate immediately upon the consumer breaking any portion of this license..."
    would effectively remove the restrictions of the license, placing the program back under general copyright law.

    So, simply break one of the (many) clauses not covered by applicable laws, and then you're out from under the EULA (if they're legally enforceable anyway). What's the most the publisher can do? There's no specific remedies in the EULA besides terminating the license.

    Of course, if you assume that you can only use the program because of the license in the first place....but, the program was legally obtained, and in legal posession.

  • This 'license' refers to your right to use the software, and to have it on the data carriers you possess. If you break (a) part(s) of the agreement, you can't use the software anymore, as you have lost the license.
    Which was my point in the last sentence. As discussed earlier, however, it would seem that US Copyright law is pretty specific to the fact that if you legally obtained and posess the program, you have a right to run the program. In other words, you only have to abide by the license because you agreed to it, not to run the program.
  • by BarefootClown ( 267581 ) on Saturday July 07, 2001 @10:40AM (#101647) Homepage
    I think it's a typo, but having read some of the licenses, "warped" may be a very apropos description...

  • If I release a web app (PHP pages, say) under the GPL, and someone modifies them for their web site, does the GPL obligate them to make the source for their alterations available, since the code isn't distributed, per se?

    For example, if a site modifies Slashcode to add functionality to their own site, are they obligated to make the changes available?

    Convictions are more dangerous enemies of truth than lies.
  • Well, there's a difference between private use and "rebroadcasting" the app on a public web server. I would say a web app on the internet is in some ways the equilivalent of distributing a binary... it's allowing use of a program without distributing its inner workings.

    As software becomes more server-centric, I think this'll become more and more important.
    Convictions are more dangerous enemies of truth than lies.
  • I dunno... it's more than just, say, a word document. If you've got web app that, say, does your taxes, or converts your image files, or gives you a fully-functional word processor, the level of interaction is far beyond that of simply "output". If you or your business were dependent on that functionality, you should have the freedom to have the code so you're not dependent on your service provider.

    Although I don't think it should be covered by the GPL; there should probably be a special GPL variant (WGPL?) to cover the special circumstances of web apps.

    Convictions are more dangerous enemies of truth than lies.
  • But here, we're talking about a web app which has already been released under the GPL. Say someone wrote a GPL version of a Passport-like authentication scheme. Under the current GPL licensing options, Evil Propietary Company could take that code and embrace-and-entend it on their own Passport servers without releasing those changes.

    I'm sure lots of Open Source web app programmers would like an option to prevent that from happening to their code; to make sure their code is protected by the same "share and share alike" free software spirit that other Open Source code is protected by.
    Convictions are more dangerous enemies of truth than lies.
  • by Sycraft-fu ( 314770 ) on Sunday July 08, 2001 @08:27AM (#101653)
    Locate your nearest minor and have them install it for you. Minors can't enter into legally binding contracts without a parental co-sign. Plus most judges wouldn't even think twice about the "I had the 14-year old from next door help me" excuse.
  • I was concerned about this exact issue myself, so I wrote to the FSF about the GPL. Here's the response I got from Bradley Kuhn, VP at FSF. (The italics are stuff that I wrote in my original email.)
    There may be one point in which the license has an issue needing correcting. (Disclaimer: I'm not a lawyer.) Summary: the license can be divided into two categories: your rights to using the software,

    Copyright licenses cannot cover rights to use software directly, and the GPL does not try to cover use.

    A copyright license, like the GPL, covers rights to copy, modify and redistribute. This is what the GPL covers. The license allows someone to use the software w/o agreeing to the license, and therefore sections of the license which concern only rights to use are not enforceable.

    The license doesn't cover use, and cannot.

    Nothing in the license states that the user accepts the license by the act of *using* the software,

    There is no way to do this in a copyright license.


    Likely, they copied the program from somewhere to be able to use it, so the clause surely comes into play in that case.

    I still don't quite understand the response... why are there clauses abot no warranty if the user doesn't have to agree to the license?

    However, it does seem that FSF has thought about these things and hopefully they know what they're doing.

    Miko O'Sullivan

  • ...but it does absolutely nothing about the illegal harvesting of the user's privacy rights online. Is Netscape above the bounds of the Electronic Communications Privacy Act (18 USC Section 2510) or the Computer Fraud and abuse act (19 USC Section 1030)? The Honorable Hellerstien didn't address that in his order.
    If by some chance when the court addresses this issue, it might have an impact on 'spyware' that is out on the internet right now (like Gator [gator.com]).

    By Monday, tho, My bet is that the Smart Download will have quite a prominate click-wrap license agrteement on their webpage where the software once was.

  • >>saying that a license that users don't even have to see before downloading online free software isn't binding. Yeah, but you have to read the license before installation, in most cases. grepper

  • by Thomas M Hughes ( 463951 ) on Saturday July 07, 2001 @10:04AM (#101665)
    For EULA that you assent to before you open the package. Consider how its similar:

    You don't see the license before you assent to it.

    This could be a good case to cite it you decide to sue Microsoft at some point.
  • by kvx ( 465801 ) on Saturday July 07, 2001 @10:03AM (#101668) Homepage
    Could this be applied to the terms and services links that are common at the bottom of some websites? It seems that if you don't have to view them, they might not be valid. I understand the ruling here, but it could be applied to some other things which aren't necessarily good.

Would you people stop playing these stupid games?!?!?!!!!