From: "David Schwartz" <davids@webmaster.com>
To: <debian-legal@lists.debian.org>, <linux-kernel@vger.kernel.org>
Subject: RE: non-free firmware in kernel modules, aggregation and unclear copyright notice.
Date: Tue, 12 Apr 2005 12:05:59 -0700
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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


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