David Schwartz <[email protected]> wrote:
>>Copyright law only _explicitly_ grants a monopoly on preparation of
>>derivative works. However, it is trivial, and overwhelmingly common,
>>for a copyright owner to grant a license to create a derivative work
>>that is conditional on how the licensee agrees to distribute (or not
>>distribute) the derivative work.
>
> This would, of course, only make sense if you *had* to agree to the license
> to *create* the derivative work. If you were able to create the derivative
> work under first sale or fair use rights, then the restrictions in the
> contract would not apply to you.
If you buy a W*nd*ws install CD, you can create a derived work, e.g. an image
of your installation, under the fair use rights (IANAL). Can you distribute
that image freely?
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> David Schwartz <[email protected]> wrote:
>
> >>Copyright law only _explicitly_ grants a monopoly on preparation of
> >>derivative works. However, it is trivial, and overwhelmingly common,
> >>for a copyright owner to grant a license to create a derivative work
> >>that is conditional on how the licensee agrees to distribute (or not
> >>distribute) the derivative work.
> > This would, of course, only make sense if you *had* to agree to
> > the license
> > to *create* the derivative work. If you were able to create the
> > derivative
> > work under first sale or fair use rights, then the restrictions in the
> > contract would not apply to you.
> If you buy a W*nd*ws install CD, you can create a derived work,
> e.g. an image
> of your installation, under the fair use rights (IANAL). Can you
> distribute
> that image freely?
I would say that if not for the EULA, you could transfer ownership of the
image to someone else. And if you legally acquired two copies of Windows,
you could install both of them and transfer them. Otherwise, you could not
sell a machine with the Windows OS installed unless you were a Microsoft
OEM. Does Microsoft take the position that if you want to sell your PC, you
must wipe the OS? Not that I know of.
DS
On Tue, Apr 12, 2005 at 09:44:29AM -0700, David Schwartz wrote:
> I would say that if not for the EULA, you could transfer ownership
> of the image to someone else. And if you legally acquired two copies of
> Windows, you could install both of them and transfer them. Otherwise,
> you could not sell a machine with the Windows OS installed unless you
> were a Microsoft OEM. Does Microsoft take the position that if you want
> to sell your PC, you must wipe the OS? Not that I know of.
[1] I think you've confused Microsoft's Original Equipment Manufacturer
License with Microsoft's End User License Agreement.
[2] The grounds for Microsoft's EULA are much weaker than the grounds
for the GPL restrctions on the production of derivative works.
At least with the GPL, you're getting something you didn't already have
(rights restricted to the copyright holder -- for example, in the states,
under 17 USC 106).
With Microsoft's EULA, it's not clear that you're getting anything
in exchange for complying with the copyright -- at least not in the
U.S. which is where Microsoft is based. You already have a number of
rights (17 USC 107, 17 USC 117), and while the DMCA has put into law
that you can't bypass copyright protection (17 USC 1201), it seems to
allow bypassing technological defects which would prevent actions allowed
under copyright.
It's probably worth noting that legal actions based on Microsoft's
EULA are settled out of court -- Microsoft has a history putting a
lot of direct and indirect pressure on people charged with violating
the agreement and, in the rare case where someone has stood up to the
pressure, of cutting their losses and settling out of court.
--
Raul
> On Tue, 12 Apr 2005, David Schwartz wrote:
> > > If you buy a W*nd*ws install CD, you can create a derived work,
> > > e.g. an image
> > > of your installation, under the fair use rights (IANAL). Can you
> > > distribute
> > > that image freely?
> > I would say that if not for the EULA, you could transfer
> > ownership of the
> > image to someone else.
> The EULA is irrelevant in germany and in many parts of the USA.
Really? I was under the impression EULA's were routinely upheld in the USA.
If you have any references for that, I'd love to hear them.
> > And if you legally acquired two copies of Windows,
> > you could install both of them and transfer them. Otherwise,
> > you could not
> > sell a machine with the Windows OS installed unless you were a Microsoft
> > OEM.
> Then it would be stupid to become a OEM. Just buy one CD and
> install it on
> each computer you sell, combined with a pre-installed ghost.
You can only transfer each legally acquired copy once. The nice thing about
GPL'd works is you can easily legally acquire as many copies as you want.
But for works that are sold for a price, you have to legally acquire one
copy for each one you transfer. *You* cannot increase the number of copies
of the work, only a lawful distributor of the work can.
If you don't want to be bound by the GPL and you want to give ten friends
copies of a Linux install disk, you could download ten copies of that disk
from an FTP site, transfer them each to a floppy and destroy all other
copies. You could then give those copies away under first sale rights.
However, technically, if you gave out eleven copies and only legally
acquired nine, you are exceeding your rights under first sale.
> > Does Microsoft take the position that if you want to sell your PC, you
> > must wipe the OS? Not that I know of.
> They say it's forbidden do pass even the boot loader you put on disks,
> they just won't sue you for just the boot loader.
Right, but in these cases the number of copies of the work is increased by
the person. In the case of most GPL'd work, you can find any number of web
sites that will do this for you. They have to comply with the GPL but you
don't. (You don't have to agree to the GPL to lawfully acquire as many
copies of the work as you want. Each copy can be lawfully transferred to
another under first sale rights.)
If you acquire a copy of a GPL'd work that is sold for a price, and you
only buy one copy, you cannot make and distribute additional copies without
complying with the GPL. Each lawfully-acquired copy can be transferred,
however.
DS
On Tue, 12 Apr 2005, David Schwartz wrote:
> > The EULA is irrelevant in germany and in many parts of the USA.
>
> Really? I was under the impression EULA's were routinely upheld in the USA.
> If you have any references for that, I'd love to hear them.
http://www.freibrunlaw.com/articles/articl22.htm
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> On Tue, Apr 12, 2005 at 09:44:29AM -0700, David Schwartz wrote:
> > I would say that if not for the EULA, you could transfer ownership
> > of the image to someone else. And if you legally acquired two copies of
> > Windows, you could install both of them and transfer them. Otherwise,
> > you could not sell a machine with the Windows OS installed unless you
> > were a Microsoft OEM. Does Microsoft take the position that if you want
> > to sell your PC, you must wipe the OS? Not that I know of.
> [1] I think you've confused Microsoft's Original Equipment Manufacturer
> License with Microsoft's End User License Agreement.
I wasn't talking about the specific terms of any agreement. I was just
saying that to make this analogous to the GPL situation (which was the point
of this example), you would have to ignore any shrink-wrap agreement because
the GPL is not a shrink-wrap agreement and the rules for shrink-wrap
agreements are totally different from the rules for license.
> [2] The grounds for Microsoft's EULA are much weaker than the grounds
> for the GPL restrctions on the production of derivative works.
That doesn't matter, the GPL doesn't set the scope of its own authority.
None of what I'm saying has anything to do with the text of the GPL because
the GPL can only add new rights. I'm talking strictly about the rights you
automatically have if you legally possess the work under fair use and first
sale.
> At least with the GPL, you're getting something you didn't already have
> (rights restricted to the copyright holder -- for example, in the states,
> under 17 USC 106).
Yes, the GPL can give you rights you wouldn't otherwise have. A EULA can
take away rights you would otherwise have.
> With Microsoft's EULA, it's not clear that you're getting anything
> in exchange for complying with the copyright -- at least not in the
> U.S. which is where Microsoft is based. You already have a number of
> rights (17 USC 107, 17 USC 117), and while the DMCA has put into law
> that you can't bypass copyright protection (17 USC 1201), it seems to
> allow bypassing technological defects which would prevent actions allowed
> under copyright.
> It's probably worth noting that legal actions based on Microsoft's
> EULA are settled out of court -- Microsoft has a history putting a
> lot of direct and indirect pressure on people charged with violating
> the agreement and, in the rare case where someone has stood up to the
> pressure, of cutting their losses and settling out of court.
In the few court cases that have directly addresses shrink-wrap and
click-wrap type agreements, I've seen them consistently upheld. However,
this is not relevent to the GPL issue at all because the GPL can only give
you rights you wouldn't otherwise have, it cannot take away any rights.
If you legally acquire a work free of any shrink-wrap agreement, and this
goes for all GPL'd works, you can use it. This includes any steps necessary
for ordinary use, including making derivative works if that's part of the
ordinary, expected use. You can also transfer any legally-acquired copy you
might have, along with any and all derivative works you made in the process
of ordinary use.
DS
> > > The EULA is irrelevant in germany and in many parts of the USA.
> > Really? I was under the impression EULA's were routinely
> > upheld in the USA.
> > If you have any references for that, I'd love to hear them.
> http://www.freibrunlaw.com/articles/articl22.htm
This wasn't a copyright case. The court only refused to uphold the
agreement because there was no oppurtunity to review the agreement before
purchase. So it certainly wouldn't apply to a click-through type agreement.
This is also one ruling by a district court, and the ruling is in the
process of being appealed. Anyone relying on this and ignoring a EULA would
be foolish indeed. There are several other shrink-wrap cases where courts
have enforced the agreements. See, for example, Hill v. Gateway 2000 and
Mortgage Plus v. DocMagic.
It is reasonable to describe this area as somewhat uncertain.
DS
On Tue, 12 Apr 2005, David Schwartz wrote:
> > If you buy a W*nd*ws install CD, you can create a derived work,
> > e.g. an image
> > of your installation, under the fair use rights (IANAL). Can you
> > distribute
> > that image freely?
>
> I would say that if not for the EULA, you could transfer ownership of the
> image to someone else.
The EULA is irrelevant in germany and in many parts of the USA.
> And if you legally acquired two copies of Windows,
> you could install both of them and transfer them. Otherwise, you could not
> sell a machine with the Windows OS installed unless you were a Microsoft
> OEM.
Then it would be stupid to become a OEM. Just buy one CD and install it on
each computer you sell, combined with a pre-installed ghost.
> Does Microsoft take the position that if you want to sell your PC, you
> must wipe the OS? Not that I know of.
They say it's forbidden do pass even the boot loader you put on disks,
they just won't sue you for just the boot loader.
--
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On Tue, Apr 12, 2005 at 03:45:43PM -0700, David Schwartz wrote:
> This wasn't a copyright case. The court only refused to uphold the
> agreement because there was no oppurtunity to review the agreement before
> purchase. So it certainly wouldn't apply to a click-through type agreement.
http://www.answers.com/topic/first-sale-doctrine cites several cases,
and has a very nice writeup on the current status of this issue.
In essence, you're claiming that the difference between Davidson
& Associates v. Internet Gateway Inc (2004) and other cases such as
Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000)
is that the presence of a click-through is the determining factor.
Of course, it could just as easily be something else (for example,
admitting in court agreement with the license).
Does this thread have anything to do with the linux kernel at this point?
--
Raul
On Tuesday 12 April 2005 10:46 pm, Raul Miller wrote:
> In essence, you're claiming that the difference between Davidson
> & Associates v. Internet Gateway Inc (2004) and other cases such as
> Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000)
> is that the presence of a click-through is the determining factor.
> Of course, it could just as easily be something else (for example,
> admitting in court agreement with the license).
Failure to have a click-through license means that there is no acceptance,
which is a fundamental part of contract law. No acceptance, no contract, no
exceptions. So yes, the difference in many of the click through license
cases is whether the contract was something you couldn't avoid accepting.
There is talk these days among tech contract drafters to develop a more
universal method for electronic acceptance... probably something that will
be written into the Uniform Commercial Code in the next few decades (behold,
the speed of legal evolution!).
-Sean
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
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So, let go
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On Tue, 12 Apr 2005, David Schwartz wrote:
> > > > The EULA is irrelevant in germany and in many parts of the USA.
>
> > > Really? I was under the impression EULA's were routinely
> > > upheld in the USA.
> > > If you have any references for that, I'd love to hear them.
>
> > http://www.freibrunlaw.com/articles/articl22.htm
>
> This wasn't a copyright case. The court only refused to uphold the
> agreement because there was no oppurtunity to review the agreement before
> purchase. So it certainly wouldn't apply to a click-through type agreement.
So you can review click-through-licenses before buying the product?
--
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32. "I am" is reportedly the shortest sentence in the English language.
Could it be that "I do" is the longest sentence?
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On Tue, Apr 12, 2005 at 11:28:59PM -0700, Sean Kellogg wrote:
> Failure to have a click-through license means that there is no acceptance,
> which is a fundamental part of contract law. No acceptance, no
> contract, no exceptions.
False.
For example, you can indicate acceptance of the GPL by exercising the
rights it grants.
Furthermore, the converse is also false: it's quite possible to install
software on your machine without clicking on the click-through license.
For example, someone else might install it for you. [You expect my dad
to figure out how to install anything?]
--
Raul