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Court Finds Online Software License Not Binding

timothy posted about 13 years ago | from the didn't-look-didn't-touch dept.

The Courts 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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137 comments

No contract means no waiver of liability. (1)

Anonymous Coward | about 13 years ago | (#101532)

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.

The death of FTP (3)

Anonymous Coward | about 13 years ago | (#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?

Re:Danger GPL Danger (1)

David Price (1200) | about 13 years ago | (#101534)

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.

Re:Danger GPL Danger (1)

cpt kangarooski (3773) | about 13 years ago | (#101535)

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.

Copyright is not about use (4)

Old Man Kensey (5209) | about 13 years ago | (#101536)

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.

Re:Publishing derivatives isn't a USE? (2)

ewhac (5844) | about 13 years ago | (#101537)

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!

Schwab

Wonderful News (5)

ewhac (5844) | about 13 years ago | (#101538)

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.

Schwab

Re:De Facto License (1)

grahammm (9083) | about 13 years ago | (#101541)

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.

Simple GPL, does not make me click (2)

AIXadmin (10544) | about 13 years ago | (#101542)

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.
Cheers,
Tomas
===========

Re:Slightly offtopic GPL query: What about Web app (1)

Musc (10581) | about 13 years ago | (#101543)

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.

Re:Slightly offtopic GPL query: What about Web app (1)

Musc (10581) | about 13 years ago | (#101544)

Good point.

WTF? (2)

Musc (10581) | about 13 years ago | (#101545)

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.

Re:De Facto License (2)

IntlHarvester (11985) | about 13 years ago | (#101546)

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...


--

Re:Simple GPL, does not make me click (1)

Bronster (13157) | about 13 years ago | (#101547)

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.

Re:So if I keep my eyes closed... (1)

jelle (14827) | about 13 years ago | (#101548)

Thanks I just ordered the book...

Ah, thankyou... (1)

sterno (16320) | about 13 years ago | (#101552)

That clears that up :). I was worried for a second there :)

---

Danger GPL Danger (3)

sterno (16320) | about 13 years ago | (#101553)

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.

---

URL for the decision (5)

Froomkin (18607) | about 13 years ago | (#101555)

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

Re:De Facto License (2)

Arandir (19206) | about 13 years ago | (#101556)

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).

Cookie monster law site Re:URL for the decision (2)

warpeightbot (19472) | about 13 years ago | (#101557)

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...

Re:What?? (2)

mindstrm (20013) | about 13 years ago | (#101558)

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...

Let me clarify. (2)

mindstrm (20013) | about 13 years ago | (#101559)

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.

Too many licenses spoil the vendor ... (2)

LL (20038) | about 13 years ago | (#101560)

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.

LL

Re:Danger GPL Danger (2)

Polo (30659) | about 13 years ago | (#101561)

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?

Wow... (5)

Snowfox (34467) | about 13 years ago | (#101562)

...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..."

Re:Danger GPL Danger (1)

mystik (38627) | about 13 years ago | (#101570)

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.

Absent License there is no right to use either (2)

werdna (39029) | about 13 years ago | (#101571)

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.

Two legal myths from an AC (2)

werdna (39029) | about 13 years ago | (#101572)

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.

Another myth (2)

werdna (39029) | about 13 years ago | (#101573)

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.

Re:Absent License there is no right to use either (2)

werdna (39029) | about 13 years ago | (#101574)

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.

Weight (2)

rjh (40933) | about 13 years ago | (#101577)

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.

Re:Danger GPL Danger (2)

Weezul (52464) | about 13 years ago | (#101578)

I would hope that you can not give up your "fair use" rights by contract just as you can not sell yourself into slavery.

Re:So if I keep my eyes closed... (1)

Dwonis (52652) | about 13 years ago | (#101579)

I heard a theory that time has 3 dimensions. I don't remember the details, though.
------

Re:Danger GPL Danger (2)

Dwonis (52652) | about 13 years ago | (#101580)

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.
------

Re:for all you dozy people (2)

Dwonis (52652) | about 13 years ago | (#101581)

Better: get a virus that swaps the function of the "I Agree" and "I Disagree" buttons.
------

Re:Simple GPL, does not make me click (3)

Vhalros (54396) | about 13 years ago | (#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".

Re:Absent License there is no right to use either (1)

QuoteMstr (55051) | about 13 years ago | (#101583)

I *also* through the courts upheld that "incidental copies" were legal.

Re:This could be a very bad thing... (2)

bnenning (58349) | about 13 years ago | (#101584)

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.

So if I keep my eyes closed... (2)

SaDan (81097) | about 13 years ago | (#101588)

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

SWEET!

I love the courts sometimes.

Interested in weather forecasting?

Re:What it really means -- Nothing! (1)

Trekologer (86619) | about 13 years ago | (#101590)

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.
-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 (1)

Kwikymart (90332) | about 13 years ago | (#101591)

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.

Re:Publishing derivatives isn't a USE? (1)

Steeltoe (98226) | about 13 years ago | (#101596)

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

- Steeltoe

Re:Danger GPL Danger (3)

OmegaDan (101255) | about 13 years ago | (#101597)

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 ...

Re:Danger GPL Danger (2)

harlows_monkeys (106428) | about 13 years ago | (#101598)

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.

Re:Danger GPL Danger (2)

harlows_monkeys (106428) | about 13 years ago | (#101599)

Of course you can give up "fair use" rights by contract. What's wrong with that?

um what about the gpl (1)

RestiffBard (110729) | about 13 years ago | (#101600)

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."

Re:other implications (1)

cybermage (112274) | about 13 years ago | (#101601)

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.

De Facto License (3)

cybermage (112274) | about 13 years ago | (#101602)

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?

Such a law already exists in some jurisdictions... (1)

Robber Baron (112304) | about 13 years ago | (#101603)

Some jurisdictions (such as British Columbia) already have a law on the books where if you can prove that you didn't understand the terms of a contract and no effort was made to clarify them to you, then the contract is void. Easy to see how this would apply to those software "agreements" nobody reads...

Re:What it really means -- Nothing! (1)

Artagel (114272) | about 13 years ago | (#101604)

This judge was following a federal district judge in California, more or less. Winning this case in front of any other trial judge is going to be a steep uphill battle. No court is required to follow them, but on the other hand, getting a different result requires convincing a federal judge that TWO other federal judges on opposite sides of the country were wrong. Good luck!

Re:Absent License there is no right to use either (2)

MrGrendel (119863) | about 13 years ago | (#101605)

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.

Re:Danger GPL Danger (5)

MrGrendel (119863) | about 13 years ago | (#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.

I'm opening a new business.. (1)

SirGeek (120712) | about 13 years ago | (#101607)

I'm going to hire Moomies with their little sprogs out to install software for people. Since the sprogs aren't 18, no court can state they agreed to the licence/contract since all contract laws require you to be the age of consent...

Re:um what about the gpl (3)

SuiteSisterMary (123932) | about 13 years ago | (#101608)

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.

Browse-Warp? (1)

xee (128376) | about 13 years ago | (#101609)

Engage! Hehehe. Just kidding. I think you meant to say "Browse-Wrap". HTH.


-------

Re:Slightly offtopic GPL query: What about Web app (1)

Chagrin (128939) | about 13 years ago | (#101610)

No - they're not obligated to make their alterations available. This is one of the problems that is trying to be remedied with a new version of the GPL.

It's only a matter of time... (1)

SatanicPezDispenser (129783) | about 13 years ago | (#101611)

Before this ruling is overturned by a higher court. Happens every time. :)
While that may be good for unsavory, shady licensing schemes, it could be bad for GPL'd software.

-SPD
--
Writhe your naked ass to the mindless groove.

Re:De Facto License (2)

Captn Pepe (139650) | about 13 years ago | (#101612)

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).

Re:Weight (1)

www.sorehands.com (142825) | about 13 years ago | (#101613)

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?
No, the appellate court in a summary judgment will perform a de novo review of the summary judgment. The appelate court will analyze the application of law as being proper or not. Not just the trial being fair, for many times the case would not have made it to trial.

What it really means -- Nothing! (2)

www.sorehands.com (142825) | about 13 years ago | (#101614)

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!

not talking about privacy. (2)

www.sorehands.com (142825) | about 13 years ago | (#101615)

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.

Re:Danger GPL Danger (2)

Drone-X (148724) | about 13 years ago | (#101617)

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.

Re:Danger GPL Danger (5)

Drone-X (148724) | about 13 years ago | (#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.

Re:This may set a precedent... (2)

DeeKayWon (155842) | about 13 years ago | (#101619)

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.

Re:What?? (1)

Kryptonomic (161792) | about 13 years ago | (#101620)

They haven't signed it.

How do you proof that it was YOU who clicked on that particular "Agree" button?

Re:What?? (1)

sqlrob (173498) | about 13 years ago | (#101621)

Incorrect. There is a signature. The click does count as a signature, at least for anything after the electronic signature bill went into effect.

You bring up a good point though. How to prove "YOU" signed it.

Re:Simple GPL, does not make me click (2)

nagora (177841) | about 13 years ago | (#101622)

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.

TWW

No Authorization to run the trojan (1)

Twiles (177875) | about 13 years ago | (#101624)

As I understand this, the software is being given away free with the advertized functionality as being an improved file (download) transfer program. Attached to the program is a Trojan that steals information (something of value) off of your computer. If the court is saying that AOL set up their site in such a way that the user would be unaware of this Trojan, then AOL is HACKING into your computer. This is a federal offense and hackers caught and convicted of hacking into other people's computers and doing no damage are receiving jail sentences. How much jail time for AOL executives (the ones that approved this Trojan) for hacking into your computer and stealing something of value. What do you think? NOTE: A Lousiana federal district court threw out the shrink wrap license agreement in the late 1980's. That is why we have the click agreement that you supposedly have to read. Shrink wrap license agrements have been dead for 12 years (uninforcable).

Re:This could be a very bad thing... (1)

cygnusx (193092) | about 13 years ago | (#101626)

Good point. I've always held that there'd be a lot more takers for open source/Free software if people *actually* realized how much (to pick a random example) MS Office actually cost and how draconian the license terms are -- instead of borrowing CDs from friends as so many do currently.

IANAL, but this case actually seems to *encourage* click-wrap licenses, which IMHO is a bad thing :(

____________________________
2*b || !(2*b) is a tautology

This could be a very bad thing... (2)

cygnusx (193092) | about 13 years ago | (#101627)

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

encryption? (1)

vectus (193351) | about 13 years ago | (#101628)

High encryption used to require a "browse-warp" liscence to acquire, because export restrictions limited the quality of the encryption that was allowed to leave the US.

Since this makes the agreement people were forced to make, to not give the encryption software to anyone outside of the US, invalid, does this mean that the companies releasing the encryption software were not dilligent in preventing the encryption software from being released to countries outside the US, and are thus guilty of violating the export restriction?

I am scared... hold me. (1)

Skyppey (196275) | about 13 years ago | (#101629)

Does Microsoft know about this?

EULAs, Online licenses, etc (1)

Cliffton Watermore (199498) | about 13 years ago | (#101630)

I've mentioned this before, but it is quite an important point, so I'll summarize it again - EULAs are techincally illegal. The law states implicitly that a contract will be judged illegal if a reasonable man in a reasonable state of mind would not agree to that contract given reasonable conditions. What all this means is basically this: The contract must be reasonable. If it is not, it is illegal and cannot be used as grounds for prosecution.

Re:There are a number of problems with this decisi (1)

hearingaid (216439) | about 13 years ago | (#101632)

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.

Software is a good. Everything sold is either a good or a service. Why isn't software a service?

  • It's tangible. It has a physical form. Sure, that physical form may just be electrons being arranged in a particular way, but it's there.
  • It's moveable. You can put software on a floppy disk and carry it around. Or a CD.

So it's just as much a good as the latest from Tool is.

Re:No contract means no waiver of liability. (1)

hearingaid (216439) | about 13 years ago | (#101633)

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

While the latter is true, due to an unusual provision, software copyright can cover use.

It's dumb. 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.

Not all jurisdictions hold to this. But some do. It's really dumb.

Re:My Current Microsoft Liscense (1)

hearingaid (216439) | about 13 years ago | (#101634)

This is very interesting, actually.

You're not free to redistribute IE 5.5. You'd need a specific copyright license from Microsoft to grant you that right. However, use is almost certainly okay.

As for proof of the license, it would be up to the court. Should Microsoft sue you for illegally using IE 5.5 (perhaps in a way that violated the license they believe you agreed to), then it would be up to the court as to whether or not you're telling the truth. The test in a civil case is on the balance of probabilities: in other words, if the court thought the odds were you were telling the truth, they could side with you.

Certainly, snapping the screen, timestamping and encrypting would be helpful evidence for you.

Also, Microsoft's web server logs could also be helpful evidence for you. Find the error where IIS couldn't find the license agreement, and bingo. Yes, you could get access to their logs during discovery. This is a major reason why they probably wouldn't sue you. However, doing this as a practical matter, it would be helpful if you knew the date of the download.

There are a number of problems with this decision (4)

McChump (218559) | about 13 years ago | (#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)

Re:We enter contracts without seeing them frequent (2)

acceleriter (231439) | about 13 years ago | (#101638)

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.

Usage vs. Distribution (2)

cicadia (231571) | about 13 years ago | (#101639)

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 (2)

cicadia (231571) | about 13 years ago | (#101640)

"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:Danger GPL Danger (1)

3.1415926535 (243140) | about 13 years ago | (#101641)

That's why the GPL says you should add something like the following to interactive programs:
Gnomovision version 69, Copyright (C) year name of author
Gnomovision comes with ABSOLUTELY NO WARRANTY; for details type `show w'.
This is free software, and you are welcome to redistribute it
under certain conditions; type `show c' for details.

Re:De Facto License (2)

shyster (245228) | about 13 years ago | (#101642)

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.

Re:Wow... (1)

J'raxis (248192) | about 13 years ago | (#101644)

"If I don't see it, it's not illegal!" -- Homer Simpson.

Re:So if I keep my eyes closed... (1)

Fuzion (261632) | about 13 years ago | (#101645)

Actually there is, doesn't super-string theory say there are 10 or 26 dimensions?

Re:This may set a precedent... (1)

Anml4ixoye (264762) | about 13 years ago | (#101646)

Actually, you do have the ability to see the license before you open it, and again when you install it. Normally the media and license are seperate, and before you break the second seal (the one on the media - not on the package) it clearly states that by breaking the seal you agree to the terms of the license. At any rate, even if the license was, for some reason, in the package, if you did not agree to it, then you could always take it back. The challenge would come from the store you bought it from, but I assume it would be their obligation to take it back without any special charges (restocking, etc). Any thoughts?

Browse-warp license? (4)

BarefootClown (267581) | about 13 years ago | (#101647)

I think it's a typo, but having read some of the licenses, "warped" may be a very apropos description...

Slightly offtopic GPL query: What about Web apps? (2)

mech9t8 (310197) | about 13 years ago | (#101648)

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.

Re:Slightly offtopic GPL query: What about Web app (2)

mech9t8 (310197) | about 13 years ago | (#101649)

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.

Sites (and even programs) with unlocked text-boxes (1)

FLEB (312391) | about 13 years ago | (#101652)

I know it's a bit offtopic, but...

What about websites and such that give you their terms-of-use in a TEXTAREA or similar, that isn't write-protected... Couldn't I just erase the whole thing, write my own agreement, and click "I Agree".

And there's always the "I didn't click 'AGREE'... I hit Tab-Tab-Tab-Tab-Enter!" defense.

Re:No contract means no waiver of liability. (3)

mikosullivan (320993) | about 13 years ago | (#101654)

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.

and therefore THE CLAUSES ABOUT DISCLAIMING WARRANTY NEVER COME INTO PLAY.

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

This is a great ruling and such... (3)

ONU CS Geek (323473) | about 13 years ago | (#101655)

...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.

IANAL...yet.
----
Ian

Re:I am scared... hold me. (1)

malelder (414533) | about 13 years ago | (#101656)

probably not (: I used (key word is "used") to work for a third-party tech support company that handled a lot of MS's tech support (they don't take more than 10% of their tech calls), and one thing we found funny was that sometimes the license wasn't correct. I can't remember the actual culprits here, but I believe they used the Win98 Plus Pack license for Win98SE...basically they attached the wrong license to the wrong product. If they don't even have the right license, how can they expect it to be binding? And in my history of taking tons of calls, not one customer ever read the agreement...they would joke about just clicking "agree" and moving on. I'm sure most of /.'s users do the same, if they use Windows at all (: I'm curious how this will end up...will not understanding the agreement mean you don't have to live by it (ignorance of the law?) or does it matter, because since you clicked "Agree" you "Agreed"? (: grrr...have to change my settings...don't email me, that address doesn't work (:

Changes with GNU stuff? (1)

EvilStein (414640) | about 13 years ago | (#101657)

Will this mean that we'll be forced to click "Accept" on a screen detailing the GPL before we download stuff from Freshmeat?
I've already seen that kind of stuff elsewhere... I suppose some people might put up some sort of license agreement page simply to cover their own tails. In this day & age, I often think that's a good idea... =/

Installation? (2)

grepnyc (442959) | about 13 years ago | (#101658)

>>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


--------------------------------

My Current Microsoft Liscense (1)

gnovos (447128) | about 13 years ago | (#101659)

I was downloading something (I think it was IE 5.5), and when it came around to showing me the liscense, all it said was something like "Cannot find blahblah.txt" or something like that. So I hit agree. Now, does this mean I am free to use and redistribute IE 5.5 however I wish just as long as I don't go and "find blahblah.txt"? How can you prove that the liscence you clicked on said the same things that whoever wrote the liscence thinks it does? Without taking a jpeg snapshot of the screen (just copying the text won't do, the text might be rendered wrong) and time-stamping it and encrypting it, how can any big company ever come and try to prove that thier individual liscense to you said "such and such"? Any lawyers out there have thoughts on this?

Re:What about laws? (1)

aka-ed (459608) | about 13 years ago | (#101663)

This is a troll, right?

I'll bite anyway.

criminal law!=civil law

Criminal laws are not civil contracts.

I want to get drunk with Hoagy Carmichael and

This may set a precedent... (4)

Thomas M Hughes (463951) | about 13 years ago | (#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.
---

Re:other implications (1)

decade_null (464270) | about 13 years ago | (#101666)

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.

I just hope that all the websites that currently have terms of use hidden somewhere at the bottom of the page, don't now implement some click-though licensing scheme. I have always suspected, that the terms of use are not really binding, if the user is not forced to read and accept the terms.

I don't understand... (1)

natesch (465385) | about 13 years ago | (#101667)

...why people are so upset about this. The judge is simply saying that users will have to actively agree to a license before downloading the software. If Netscape can say that someone agreed to a contract they never even saw then the whole legal concept of assent falls apart. It's really just a semantics issue, and not a very big one at that.

other implications (4)

kvx (465801) | about 13 years ago | (#101668)

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.
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