Interesting Microsoft license clause re open source

Eric Jacobs eaj at ricochet.net
Thu Jun 28 02:25:02 UTC 2001


"Ravicher, Daniel B." <DRavicher at brobeck.com> wrote

> 
> > -----Original Message-----
> > 
> From: David Johnson
> [mailto:david at usermode.org]
> 
> > I would say that they're absolutely correct! The GPL even backs me up 
> > on this one. If you don't agree with the license, then you don't have 
> > to abide by it,
> > BUT you still have to abide by copyright law.
> > 
> I agree: people can accept a license or abide by copyright law.  But, I 
> must have phrased my question incorrectly because that wasn't my issue.  
> I was responding to your statement that EULA's can not constitute 
> contracts because one doesn't sign them or verbally say "OK."  I simply 
> asked what you would say to someone who said open source licenses can't 
> constitute contracts since they don't either. 

Here's my take on it.

Both open source licenses and EULA-type licenses _can_ constitute
contracts, if one agrees to their terms. The question is not whether the
contract is valid, but whether or not the end-user has any reason to
accept that contract.

If a contract offers rights to users that the user already has, there is
no reason to accept that contract. I think that was what David Johnson
was referring to in his original post. He looks over the contract,
decides that there are no rights it offers that he is interested in,
rejects it, and proceeds to exercise rights that he already has.

The EULA _would_ be valid if he agreed to it; he did not.

Whenever you talk about violating a license, be it a EULA-style
or an open source license, you have to be sure of two things. One
is that the terms were actually violated. The other is that the
would-be-violator was bound to those terms. Obviously, a signed
document is the best way to confirm that. But it is possible to
deduce that someone must have accepted a license by using a
"checkmate" argument.

The GPL (and, ideally, all open-source licenses) fulfill that
requirement by contending that _since_ the violator exercised rights
that only the GPL could have granted him, he must have accepted
the license. It is a "checkmate" situation. The violator cannot say
that he was not bound to the contract (since, without the author's
permission to the exclusive rights of modify, create derivative works,
etc., he would be guilty of copyright infringement.)

This whole scenario depends on the fact that the GPL deals in
exclusive rights under copyright law. If the GPL purported to offer
other kinds of rights (for example, the right to reverse-engineer
the software), then it would fall into the "EULA" category. It would
still be just as valid; there would just be no reason for users to
accept it (if all they wanted to do was reverse-engineer the
software.) Therefore, it could not be interpreted as placing any
kind of restriction on reverse engineering.

Section 5 of the GPL makes this explicit, though I believe this applies
for all open-source licenses:

>  5. You are not required to accept this License, since you have not
>signed it.  However, nothing else grants you permission to modify or
>distribute the Program or its derivative works.  These actions are
>prohibited by law if you do not accept this License.  Therefore, by
>modifying or distributing the Program (or any work based on the
>Program), you indicate your acceptance of this License to do so, and
>all its terms and conditions for copying, distributing or modifying
>the Program or works based on it.

The reason why the GPL can say that modifying or distributing indicates
acceptance of the license is precisely because those actions are
otherwise illegal under copyright law. (If I decline the GPL, I am
not bound by any of its terms, including Section 5; if I modify or
distribute the program, I do not indicate acceptance of the GPL --
but it is illegal for me to do so for reasons other than the license.)

If we assume that the ability to run a program is not an exclusive
right of the author under copyright law, then EULAs, in offering the
user a right that he already has, provide no incentive for the user to
accept the EULA and become bound by its terms.

OTOH, if it was the case that authors have the exclusive right to
click the "Yes" button in their programs, or to take off shrinkwrap
of media that contains their programs, then users might have that
incentive. But without those exclusive rights, users can simply ignore
the EULA, as they do not need what it has to offer.

IANAL.

Eric
-- 




More information about the License-discuss mailing list