<br><br><div><span class="gmail_quote">On 8/27/07, <b class="gmail_sendername">Donovan Hawkins</b> <<a href="mailto:hawkins@cephira.com">hawkins@cephira.com</a>> wrote:</span><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
On Tue, 28 Aug 2007, Mahesh T. Pai wrote:<br><br>> BTW, the argument/FUD sought to be spread here works both ways. Just<br>> consider this:-<br>><br>> A person violating the Microsoft EULA (for any of their OSes, for
<br>> example) is exposing himself to CRIMINAL cation, because by violating<br>> the EULA, his copy of the OS has become unauthorised. Possession<br>> and/or use of unauthourised copies of copyrighted work is a crime as
<br>> per the law of copyrights.</blockquote><div><br><br>IANAL, but I believe that EULAs only apply after installation of the software. It might be possible to, say, reverse engineer the software prior to installation. I know that there was a EULA case some time ago which held that unbundling clauses could not be enforced against someone who unbundled and distributed the software without installing it because there was no contract. (I think Adobe was the plaintiff.)
<br></div><br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">The thought has crossed my mind that even the big closed source players<br>might want to step in and side with us on this one rather than let this
<br>recent decision stand. How many companies would want their program reverse<br>engineered and used in a competitor's product for whatever fee the court<br>decides is appropriate? I think they'd prefer an injunction, same as us.
</blockquote><div><br>I would suggest that this is a dangerous precident, not because of what it means for the GPL but what it means for non-reciprocal open source licenses. IANAL, but it seems that this is distinct from De Forest because of the fact that two contracts existed in De Forest:
<br><br>1) Contract between De Forest and AT&T which included a license for AT&T to make products for the government (sublicense of patent use rights is inherent here).<br>2) An agreement during WWI where AT&T agreed not to seek injunctive relief against US Government in exchange for later monetary damages.
<br><br>I think that the court in De Forest quite reasonably saw that De Forest's patent claim was superceded by AT&Ts sublicense and actions in that regard. In short the obvious answer is "no, everyone has already decided that this is a contract issue. We are going to settle it as such."
<br><br>With the artistic license it is different. It is a conditional unilateral license grant with no obligations in return (unlike the GPL which provides certain redistribution requirements in exchange for the right to reproduce the software). I think that we should do what we need to do to help get this reversed because it will hurt certain licenses pretty hard.
<br><br>I think that the entire case is that the appropriate remedy is probably monetary damages *and* an injunction to cease the offending behavior. I also think that people who suggest that the appropriate remedy is an order to release code under the GPL essentially make the case that the GPL is a bilateral contract.
<br><br>Best Wishes,<br>Chris Travers<br></div><br></div><br>