Query on a P2P EULA

[Nathan Kelley]

To Seth Johnson <seth.johnson at RealMeasures.dyndns.org>,

>> From: David McNab <david at rebirthing.co.nz>,
> From: Seth Johnson <seth.johnson at RealMeasures.dyndns.org>,

>> Can an open source EULA exclude certain parties and uses?

No. As per the definition 
(http://www.opensource.org/docs/definition.php):

"5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of 
persons."

"6. No Discrimination Against Fields of Endeavor
The license must not restrict anyone from making use of the program in 
a specific field of endeavor. For example, it may not restrict the 
program from being used in a business, or from being used for genetic 
research."

>> In order to cover myself against any legal action resulting from 
>> actions beyond my control, I've thought of a plan which might 
>> actually employ the DMCA to my protection:
>>
>>   * Encrypt the source and binary tarballs
>>   * Provide a utility which can decrypt the tarballs, given
>> the correct decryption key
>>   * Provide another utility which provides the decryption
>> key, upon the user accepting a 'click-wrap' EULA

At least your e-mail address appears to be based in New Zealand. Does 
your use of the DMCA mean the product will be distributed under US law?

>>   * I agree to not disclose the existence of this software,
>> its design, architecture, implementation or capabilities, to
>> any company or organisation which acts or has ever acted as
>> a plaintiff (or assisted any plaintiff) in intellectual
>> property legal actions; such groups include Recording
>> Industry Association of America, Motion Pictures Association
>> of America, Business Software Alliance, Microsoft
>> Corporation, Adobe Corporation, Macromedia Corporation etc.

This would violate item 5 from the definition, and also be very 
difficult to enforce.

>>   * I will not distribute this software, in source or binary
>> form, to any other party, unless it is packaged in this
>> click-wrap agreement. If I make any modifications to the
>> software, I agree to enclose with my modified version
>> (and/or patches), a copy of the original unmodified source
>> code, and a list of modifications made, and to package all
>> of these in the click-wrap package with this agreement
>> intact

This sounds like it violates one of the items of the definition. I'm 
not sure which one though.

>> My question is - would this scheme have any prospects of
>> standing up in court? Could this prove effective in
>> protecting me from personal liability from some people's
>> usage of the software?"

If this comes back to the US, then I doubt it. Distributors of other 
P2P networking tools have had similar indemnification clauses in their 
licenses, but that hasn't saved them. I can't see you having more luck 
unless you can show that your software has and is being used for 
purposes aside from transfers of multimedia files.

Cheers, Nathan.
________________________________________________
Nathan Kelley | phyax at runbox.com | phyax at mac.com
________________________________________________

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