Strange clauses in the Twidroid license

[Joe Bell]

Disclaimer:  I am not a lawyer.

As someone already pointed out, the Twidroid license is definitely not
an open source license, and here are my thoughts on your question
regarding loopholes in the GPL.

If Twidroid does contain GPL code and they are distributing the binary,
then of course per the GPL they are obligated to disclose that fact
providing a copy of the license as well as the means to obtain the
source code if requested.  Since they have provided a commercial license
instead there are two possibilities:

* their distribution does not contain GPL code, OR
* their distribution does contain GPL code but they are disclaiming the
obligations of the GPL license

In the former case, there is no issue.  In the latter case by
disclaiming (not fulfilling) the obligations they are implying that the
default case exists, which is copyright.  Under copyright, however, they
would have no rights to copy, modify, or distribute, so rather than be
in violation of a contract (the license), they would be in violation of
copyright law [St. Laurent, Understanding Open Source & Free Software
Licensing, First Edition, 152].  So, in short, there is no real loophole
here, it is "self-closing" in the case where someone disclaims the
obligations.

Finally, regarding their Infringement clause, given the commercial
nature of the license, it is not surprising and is actually a benefit to
licensees.  It is basically saying that if for some reason or another it
is determined that the software somehow infringes on another third
party's rights that they will at their discretion supply to you, the
user, a way to continue using the infringing software (this could be
interpreted to mean they arrange with the third party that right),
supply you with a version that is not infringing, or barring those two
options, provide a refund for any license fees you have paid (covering
the corporate version of the license).  Note the phrase "without
obligation and at its sole discretion" - this is somewhat troubling,
though there may be legal precedent to show that they are compelled to
provide one of these options (one would have to consult a lawyer on this
one).

Regards,
Joe


-----Original Message-----
From: martin.vilcans at gmail.com [mailto:martin.vilcans at gmail.com] On
Behalf Of Martin Vilcans
Sent: Tuesday, June 08, 2010 8:55 AM
To: license-discuss at opensource.org
Subject: Strange clauses in the Twidroid license

Hi, I'm new to this list, so I'm not sure that this is the right place
for this question, but here we go:

I read the license agreement for Twidroid, a proprietary Twitter
client for Android: http://twidroid.com/terms/

Perhaps I'm reading too much into the license text, but to me it
sounds like they may be infringing a copyleft license and are trying
to write themselves out of it. Quoting the suspicious parts of the
license:

"Under no circumstances shall source code of Twidroid be made
available to you by tomatic."

Why would they mention this in the license?

"If Twidroid is, or in tomatic's opinion is likely to become, the
subject of a claim of infringement, tomatic shall have the right,
without obligation and at its sole discretion, to: a) procure for you
the right to continue to use Twidroid; b) replace or modify Twidroid
in such a way as to make the modified version of Twidroid
non-infringing; or c) terminate this License Agreement, /../"

This sounds like they have a plan for what to do if they are accused
of GPL violation. Does anyone have any idea of what other reason they
may have to include such as clause?

Regardless of the reason behind the clause, could such a clause be
used to avoid the copyleft? As soon as the company is accused of
violating the GPL, they revoke the user's right to use the software.
Since the user is no longer allowed to use the software, they no
longer have the right to get the source code. Is this a possible
loophole in the GPL?

Martin

-- 
martin at librador.com
http://www.librador.com



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