Date: 04 Apr 2002 20:02:52 -0800 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: <g2y9g23i8j.9g2@localhost.localdomain> In-Reply-To: <3CACFDE5.7EB9FECA@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>
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Terry Lambert <tlambert2@mindspring.com> writes: > "Gary W. Swearingen" wrote: > > I think the DMCA binds you to the terms of the license, > regardless. I think that even without the DMCA, only the > license permits you to use the code. The issue comes down > to the legality of the contract, which requires an exchange > of consideration. The consideration, in this case is, I > think, the acceptance of the disclaimer. In the 4 clause > case, it also includes acceptance of the non-use of the > licensors name in advertising, without permission. I doubt if even the DMCA can bind you to the terms of a license contract which doesn't exist. The text does, but the contract doesn't if the user of the code has never seen the text. Your items of consideration only help make the point, because the user has not indicated acceptance of the disclaimer; he doesn't even need to do that to accept the license. It's a good guess that the DMCA requires some kind of clear notice to downloaders before the downloading of no-cost software will be considered illegal. But I guess I need to read the DMCA. Argh. > The question is whether there are deep pockets behind that. That accounts for the lack of huge numbers of suits, but not for the absense of them, methinks. > 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). > No. The BSD license *specifically* states: > > The Regents of the University of California. All > rights reserved. > > This includes use and performance rights. 8-). There are no such rights FOR SOFTWARE in the 17USC106 "Exclusive rights..." list and I've read quite a bit on the subject and have never seen anyone show any evidence for such rights for software. The FSF, for instance, is clear to note that the GPL doesn't cover "use". The BSDL's mention of "use" is moot, AFAIK. There isn't even an exclusive copy right, for the "use" case covered by 17USC117 (http://www4.law.cornell.edu/uscode/17/117.html) which is widely interpreted as "running" the software. > Mississipi and Missouri both have appelate level rulings > that uphold the validity of shrink wrap licenses; I have I've seen it (or something similar), but I don't see why it matters. I'm just theorizing that such licenses are probably necessary (in the absence of a signed contract) to give a disclaimer most of the legal effect desired because only such licenses can restrict the running of a copy of software (with its attendant damage potential). > > [...] There are many arguments I won't go into why it is wrong to hold > > PD publishers to a higher standard than prorietary publishers and I > > believe that courts have acknowledged a similar concept in their > > mentions of "consideration" in contract cases. > > There is no higher standard. There is only a preponderance of > evidence. Your mention of the higher standard is what started this thread. You said something to the effect that people have to keep software proprietary so their disclaimer has legal merit, implying that their disclaimer on PD software has no (or less) legal merit. I call that a higher standard for PD software. Maybe it isn't the best term. 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. To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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