Date: 07 Apr 2002 18:24:09 -0700 From: swear@blarg.net (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: chat@FreeBSD.ORG Subject: Re: Hold Harmless (was: Anti-Unix Site Runs Unix) Message-ID: <7z8z7z0ypy.z7z@localhost.localdomain> In-Reply-To: <3CAD3A14.3C5ED003@mindspring.com> References: <20020402113404.A52321@lpt.ens.fr> <3CA9854E.A4D86CC4@mindspring.com> <20020402123254.H49279@lpt.ens.fr> <009301c1da83$9fa73170$0a00000a@atkielski.com> <15530.6987.977637.574551@guru.mired.org> <3CAAAA98.E9D7EBE6@mindspring.com> <b8vgb8679z.gb8_-_@localhost.localdomain> <3CAB69B8.2817604E@mindspring.com> <wjn0wj5lly.0wj@localhost.localdomain> <3CACFDE5.7EB9FECA@mindspring.com> <g2y9g23i8j.9g2@localhost.localdomain> <3CAD3A14.3C5ED003@mindspring.com>
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Terry Lambert <tlambert2@mindspring.com> writes: > "Gary W. Swearingen" wrote: > > ... But I guess I need to read the DMCA. Argh. > > Yep. You need to read it. It makes "shrink wrap" licenses > valid, which means that you can put them inside the box, > and are bound by it because you opened the box, whether > you read the license or not. I understood them to be valid before DMCA, because of unified state (commercial and contract) laws, except in the minds of a few judges who needed the new law. But I've read many lay opinions that most free software does not qualify as "shrink wrapped" and I at least agree with them that most free software licenses do not even cover the right to run software. The DMCA is about copyrights. Maybe in the bargin it allows restrictions on other rights (like the right to publish benchmarks or even to simply run the software) by a copyright-protecting license (something that plain contract law has been used for), but the BSDL and GPL do not incorporate such restrictions on non-copyrights like running. > > > Yes. Like the consideration that you not use my name in > > > advertising, or the consideration that you hold me harmless. > > > > For the purposes of the argument, yes, like that; but not even such > > low-value consideration is involved in the "running" of PD or BSDL'd (or > > GPL'd) software (assuming the DMCA doesn't forbid it). > > For PD, that's true... that's the whole point, really: there > is no contract, therefore there is no hold harmless. This is > because even though you have stuck a notice on it, the access > to the code is not subject to the consideration of compliance > with the license. PD, by definition, doesn't have contingent > access. The access to BSDL'd and GPL'd software doesn't have contingent access either. Only contingent distribution. And once I access it, the 17USC117 allows me to run it (possibly damaging myself so I can sue somebody). I think you admitted that twice in a subsequent message. The only question is whether the DMCA causes a disclaimer on BSDL'd or GPL'd software to be of any more use than it is on PD software, namely the use as notice to the public of conditions that are hoped to exist regardless of the notice (mainly to fend off frivolous suits and to reduce judgements/money when the conditions don't exist). All this despite the fact that these licenses (and copyright law) don't restrict the running of this kind of software. > [...] The licenses are > the only things that *permit*. By default, Copyright restricts > all use and utilization. This is because installation requires > copying (for traditional installation; it would be interesting > to see whether a bootable CDROM is considered "copying into > memory"... it would also be interesting to see if such loading > into memory constitutes "first use" or subsequent use; the > backup provisions only apply to "first use"). Read 17USC117 (again?) and see if you still want to say that. I don't see how. I've read what I'm sure are the relevant parts of 17USC and the list of protected rights does not include "running" with 117 making the necessary copying that you refer to also not protected. > I think what you wanted to say is that PD authors should be > permitted to obtain equal protection against litigation by > disclaiming warranties and fitness. No; that's what YOU wanted to say (and I agree). I wanted to say that they DO have equal protection for the case of RUNNING BSDL and GPL software. Good (though not well documented) protection, I think, but maybe equally poor. > The answer is: they are > not entitled to disclaim them without a contract, in which > the recipient permits them to disclaim them as part of the > consideration. > This is why, in order to encourage PD works, there needs to > be special consideration in the law to implicitly disclaim, > by default, such things which are normally reasonably and > customarily disclaimed. The law already considers the value of a contracts consideration. But for what I'm discussing, there IS no contract and so the consideration is zero and so the liability should be zero. Of course one must judge one's risks before trusting one's beliefs. > You *might* be able to get away with something like: > > "Subject to the following conditions, this code is > placed in the public domain" I've seen people do it, but it's no more in the public domain than a Disney cartoon. > I don't think that this would work, in practice, however, > since "Public Domain" has special legal meaning. I'm not as sure as I once was about that. I've seen IP lawyers use it differently than you and I. It might actually be that it is legitimate to say "the deceased author's book has entered the public domain" even though "the deceased author's copyrights are not yet in the public domain". > By making > your placement in the public domain subject to terms, you > are implying a contract with all of society, which I don't > think you can do, even if the DMCA were found to be fully > enforcible. THis is the interpretation that RIAA and MPAA > is trying to enforce with DVD and the DMCA. It doesn't even make sense. The condition is clearly on individuals; else the public has to act in unison and give any person veto power. > > But I think both cases are essentially the same regarding a disclaimer > > for 17USC117 "use" because both may be legally obtained and "used" > > without ever even seeing the disclaimer. Either both are at significant > > legal risk, or neither are mostly because of the lack of or low value of > > consideration or for practical/sociological reasons. > > You have to read the code in order to prepare a derivative > work. I think your claim might be correct, with regard to > binaries. > > However, the UCBL requires that the license notice accompany > distribution for the distribution to be legal, so one can > argue that it's legally contingent on the acceptance of the > license by the recipient, and that enforcement of acceptance > is the responsibility of the distributor. Please explain the "so" in your statement. I don't get it. Or argue it with other evidence. I know of no reason why I should have to accept a license of copyrights to exersize a right (running) which is not a copyright. BTW, the UCBL does NOT require what you say it does. It requires that you redistribute the copyright, the list of conditions, and the disclaimer. There's nothing there about redistributing the permission notice! Do you suppose there was a reason for listing all but that? To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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