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."
No contract means no waiver of liability. (Score:1)
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.
The death of FTP (Score:3)
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?
Re:Danger GPL Danger (Score:1)
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.
Re:Danger GPL Danger (Score:1)
Copyright is not about use (Score:4)
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.
Re:Publishing derivatives isn't a USE? (Score:2)
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:
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!
Schwab
Wonderful News (Score:5)
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:
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.
Schwab
Re:Danger GPL Danger (Score:1)
Re:Danger GPL Danger (Score:1)
Re:De Facto License (Score:1)
Simple GPL, does not make me click (Score:2)
Cheers,
Tomas
===========
Re:Slightly offtopic GPL query: What about Web app (Score:1)
Re:Slightly offtopic GPL query: What about Web app (Score:1)
WTF? (Score:2)
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.
Re:De Facto License (Score:2)
(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...
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Re:Simple GPL, does not make me click (Score:1)
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.
Re:So if I keep my eyes closed... (Score:1)
Well, it's a quite limited decison (Score:2)
And since it's based on California law, it doesn't apply outside of that state.
Caution: Now approaching the (technological) singularity.
Re:This may set a precedent... (Score:2)
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
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.
Optomist! (Score:2)
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.
Ah, thankyou... (Score:1)
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Danger GPL Danger (Score:3)
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What if I don't understand English? (Score:2)
I think this is a fundamental problem with trying to automate contracts. It clearly couldn't happen if all parties involved were conscious beings.
URL for the decision (Score:5)
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
Re:De Facto License (Score:2)
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).
Cookie monster law site Re:URL for the decision (Score:2)
Free as in speech wins again... and in the long run will probably save our butts, come the revolution...
Re:What?? (Score:2)
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...
Let me clarify. (Score:2)
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.
Too many licenses spoil the vendor ... (Score:2)
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.
LL
Re:Danger GPL Danger (Score:2)
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?
Wow... (Score:5)
"I didn't see a thing. I only clicked the mouse a few times thinking it might turn the display back on, your honor..."
Re:Two legal myths from an AC (Score:2)
Using the same argument reading a book or listening to a CD is "copyright infringement"...
Re:Danger GPL Danger (Score:2)
Also the GPL is about actual copyright law, most of the other licences attempt to pervert copyright into "useright".
Re:No (Score:2)
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.
Re:Simple GPL, does not make me click (Score:2)
No they are granting you a licence to distribute subject to specific conditions.
Re:No contract means no waiver of liability. (Score:2)
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).
Re:Duh! (Score:2)
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.
Re:Danger GPL Danger (Score:2)
Re:Danger GPL Danger (Score:1)
Absent License there is no right to use either (Score:2)
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.
Two legal myths from an AC (Score:2)
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.
Another myth (Score:2)
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.
Re:Absent License there is no right to use either (Score:2)
Duh! (Score:2)
*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.
Re:Duh! (Score:2)
Nothing you have suggested militates to the contrary.
Weight (Score:2)
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.
Re:Danger GPL Danger (Score:2)
Re:So if I keep my eyes closed... (Score:1)
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Re:Danger GPL Danger (Score:2)
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Re:for all you dozy people (Score:2)
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Re:Simple GPL, does not make me click (Score:3)
Re:Absent License there is no right to use either (Score:1)
Re:This could be a very bad thing... (Score:2)
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.
Re:Sites (and even programs) with unlocked text-bo (Score:2)
//rdj
Re:Copyright is not about use (Score:1)
right to copy.
reality check (Score:1)
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]
So if I keep my eyes closed... (Score:2)
SWEET!
I love the courts sometimes.
Interested in weather forecasting?
Re:Sites (and even programs) with unlocked text-bo (Score:1)
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?
Re:What it really means -- Nothing! (Score:1)
-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.
-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...
Re:Danger GPL Danger (Score:1)
Re:Danger GPL Danger (Score:1)
Re:It's only a matter of time... (Score:2)
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."
Re:"License not binding". So can I pirate? Resell (Score:1)
Re:De Facto License (Score:1)
"...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.
Re:Publishing derivatives isn't a USE? (Score:1)
- Steeltoe
Re:Danger GPL Danger (Score:3)
But the difference is, the GPL grants you EXTRA rights above and beyond copyright, and EULA's seek to take rights away ...
Re:Danger GPL Danger (Score:2)
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.
Re:Danger GPL Danger (Score:2)
um what about the gpl (Score:1)
Re:other implications (Score:1)
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.
De Facto License (Score:3)
Re:Absent License there is no right to use either (Score:2)
Re:Danger GPL Danger (Score:5)
Re:um what about the gpl (Score:3)
Re:De Facto License (Score:2)
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).
What it really means -- Nothing! (Score:2)
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!
not talking about privacy. (Score:2)
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.
Re:Danger GPL Danger (Score:2)
What I meant was that you fall down on the default copyright restrictions, being that you cannot do anything with the code.
Re:Danger GPL Danger (Score:5)
Re:This may set a precedent... (Score:2)
Re:Simple GPL, does not make me click (Score:2)
Basically, this does not affect the GPL, just as it does not affect copyright.
TWW
Re:Simple GPL, does not make me click (Score:2)
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.
TWW
This could be a very bad thing... (Score:2)
From the judgement [uscourts.gov] :
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
There are a number of problems with this decision (Score:4)
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
--J (yes, IAL)
Re:We enter contracts without seeing them frequent (Score:2)
Usage vs. Distribution (Score:2)
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.
Re:Usage vs. Distribution (Score:2)
"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.
Re:De Facto License (Score:2)
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.
Re:De Facto License (Score:2)
Browse-warp license? (Score:4)
Slightly offtopic GPL query: What about Web apps? (Score:2)
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.
Re:Slightly offtopic GPL query: What about Web app (Score:2)
As software becomes more server-centric, I think this'll become more and more important.
--
Convictions are more dangerous enemies of truth than lies.
Re:Slightly offtopic GPL query: What about Web app (Score:2)
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.
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Convictions are more dangerous enemies of truth than lies.
Re:Slightly offtopic GPL query: What about Web app (Score:2)
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.
Or (Score:3)
Re:No contract means no waiver of liability. (Score:3)
However, it does seem that FSF has thought about these things and hopefully they know what they're doing.
Miko O'Sullivan
This is a great ruling and such... (Score:3)
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.
IANAL...yet.
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Ian
Installation? (Score:2)
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This may set a precedent... (Score:4)
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.
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other implications (Score:4)