Fwd: study of GNU GPL vs MS EULA

[Rod Dixon, J.D., LL.M.]

I would argue that Rick's second point is responsive to his first question
asking why compare a proprietary license like the XP EULA to the GPLv2 in
the first place.

It seems to me that there are a number of factors that a good comparison
might make evident regarding whether it is  correct to say that the XP EULA
and the GPLv2 are different types of legal instruments? Is one a contract
and the other a copyright license? Rick seems to think so, but a study
comparing these two legal instruments could have provided a potentially
persuasive answer with the pertinent legal arguments in support.

Rod

: Quoting Dr. Ernie Prabhakar (drernie at opendarwin.org):
:
: > A friend of mine forwarded me this article (and report), which I
: > thought would be of interest to the readers of this list.  Has anyone
: > else seen this?
:
: As always, reporter Sam Varghese's comments (the SMH article) are cogent
: and useful.  Con Zymaris's licence analysis, on which Sam commented,
: struck me as generally a pleasant surprise.  A few points:
:
: 1.  From an operational standpoint, comparing the XP EULA and GPLv2
: seems strange:  It's difficult to imagine a pragmatic situation in which
: the comparison is relevant.  Are we envisioning a developer deciding
: whether to link his codebase to libraries under one or the other of
: those licensing regimes?  Is the piece an summary of business risks from
: relying on code under one licence versus the other?  If so, why not say
: so?
:
:
: 2.  At no point does Zymaris explain the surrounding legal framework in
: which the two licences operate:  The GNU GPL does not purport to be a
: contract (though it has some contract-like language).  Instead, its
: basis lies entirely within copyright law, purporting to extend contract
: law's default permissions grant for anyone willing to accept attached
: provisos.  (I say that at some risk of triggering argument from
: listmembers who have previously disagreed -- and yes, IANAL, TINLA.)
:
: The XP EULA explicitly purports to form a contract between each user and
: Microsoft Corp., putting it within a different area of law, with some
: consequently different required elements (privity, offer/acceptance,
: etc.) that may be problematic for the licensor.
:
:
: 3.  In general, it would have been nice to see something about
: likelihood of particular clauses being struck down by courts.  Why?
: Because I've found that both technical people and businessmen (but
: expecially the former) have a bad habit of assuming that anything put in
: writing thereby gains force of law -- whereas the software industry has
: a long history of laughably bogus "licences" and "agreements" useful
: only for cowing the gullible.
:
: But that's probably outside the piece's scope.
:
:
: 4:  Quoting:
:
: EULA> Except as otherwise permitted by the NetMeeting, Remote
: EULA> Assistance, and Remote Desktop features described below, you
: EULA> may not use the Product to permit any Device to use, access,
: EULA> display, or run other executable software residing on the
: EULA> Worstation Computer, nor may you permit any Device to use,
: EULA> access, display, or run the Product or Product's user interface,
: EULA> unless the Device has a separate license for the Product.
:
: CZ> Analysis:  Microsoft does not allow you to use general-purpose
: CZ> remote-control software such as VNC or PC Anywhere to access
: CZ> this computer.  Microsoft provides its own method of remote
: CZ> access, and appears here to be explicitly disallowing alternatives.
:
: I believe this to be a misreading of the quoted EULA clause.  I think it
: says that, e.g., if you have MS Project installed on MS Windows XP
: Professional, and wish to run it remotely from your Linux box via VNC or
: rdesktop, you may do so _either_ via one of the enumerated Microsoft
: mechanisms _or_ provided that you have a second MS Windows XP
: Professional licence to accompany your Linux box.  (I'll bet that recent
: licences for Microsoft application software such as MS Project include
: the same clause, or will shortly.)
:
: I think it's a quite understandable licence provision given Microsoft's
: business model, and has been widely misinterpreted (melodramatically so).
:
: --
: Cheers,                        A: No.
: Rick Moen                      Q: Should I include quotations after my
reply?
: rick at linuxmafia.com
: --
: license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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