Fwd: study of GNU GPL vs MS EULA

[Con Zymaris]

On Mon, Apr 28, 2003 at 09:52:37PM -0700, Rick Moen wrote:
> 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?

While I agree with the basic tennets of Rick's argument, I would ask in 
return: if not a comparison of the GPL to the EULA, then what? I see these 
two licences as perhaps the primary exemplars of the FOSS and proprietary 
worlds, and as such, are perhaps the only readily available agreements we 
can contrast in this manner.

> 
> 
> 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.

Concurr. 

What I find quite surprising (and the motivation for my undertaking this 
comparison) is that no-one else has done something similar.

> 
> 
> 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.)

You are correct. My ommission. 

Latest version of the document will include an update to this effect.


Cheers,

Con Zymaris
CEO
Cybersource   

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Con Zymaris <conz at cyber.com.au> Level 4, 10 Queen St, Melbourne 03 9621 2377 
Cybersource: Unix/Linux, TCP/IP and Web App. Development  www.cyber.com.au

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