Re: [fsf-community-team] Introduction

[Simon Bridge]

On Wed, 2009-12-16 at 10:04 -0700, James Phillips wrote:
> On Tue, Dec 15, 2009 at 06:19:58PM +1300, Simon Bridge wrote:
> > On Mon, 2009-12-14 at 08:40 +1100, Matthew Davidson wrote:
> > > Hi,
> > 
> > > My introduction to free software came about by needing a free-as-in-beer 
> > > programming language (I settled on Perl), and while avoiding work one 
> > > day I read the copy of the GPL - specifically the preamble - that came 
> > > with it. I was literally thrown back in my chair by the world-changing 
> > > implications of that text.
> > > 
> > Oh yeah it's on eye opener all right.
> > Have you seen:
> > http://www.cybersource.com.au/cyber/about/comparing_the_gpl_to_eula.pdf
> > 
> > I had already been using a similar license for years before I came
> > across this one - which is better written.
> > 
> 
> I have been considering a possible loop-hole for the EULA(s): the term 
> "End User" is never explicitly defined. They claim that by using the 
> software you agree to the license, but that is completely unreasonable: 
> especially if the "end user" is not aware of (or did not read) the 
> license. The linked PDF uses the example of an Internet Cafe: Is the 
> business the end-user? The employees? The Customers?

But for what use?

The validity of these eulas as contracts is legally questionable in many
jurisdictions. In NZ it would probably come down to who has the most
expensive lawyers.

In NZ there is a move in academic legal circles to the effect that
copyright law should set limits on contract law. Recent amendments
include clauses which cannot be contracted out of.

So - for instance - in NZ it is not an offense to reverse engineer
proprietary software, even if you signed a contract promising not to.
That clause in the contract is illegal.


> 
> If I am "helping" a friend fix thier Windows installation, what should I 
> do when confronted with the click-wrap screen? I am not the End-user so 
> can not agree to it. The end-user has no interest in reading such a long 
> document that probably needs a legal opinion (noun) to understand 
> properly. I can't force the real end-user to sign something stating they 
> read the agreement, because then it may actually become enforceble.

Inform your friend that using this software involved their agreeing to
be bound by a contract which could be injurious to their freedom and the
overall liberty of their community. Recommend that they read the
contract. Do they still want you to procede?

IIRC: for Vista and 7 you need only use the software to be bound by the
contract. But that may have changed.


> 
> What if I want to reverse engineer a Micrsoft product for the purposes 
> of interoperability, but my jurisdiction doesn't explicitly grant an 
> exemption. Am I still allowed to do it if I don't use Windows, but 
> install a (purchased copy) explicitly for the purposes of 
> reverse-engineering? That is, does the mere installation of Windows even 
> imply the presence of an End-User?
Depends on your jurisdiction and the license. Usually the answer is
"no". You are expected to seek a license from the rights holder for this
purpose - re: Novell

EULAs are written to be very easy to anticipate - if you are wondering
if it is within the terms of the eula to do a particular thing then
chances are it isn't.

In NZ you are not permitted to "make a business of" reverse engineering
proprietary software or distributing reverse engineered code. It is also
not clear about those eulas which attempt to shift jurisdiction as in:
"I agree to be bound by the laws and statutes of the state of Virginia".

In NZ this is frowned upon as a form of colonialism so we would expected
judge to rule that NZ jurisdiction applies on goods and services traded
within NZ territorial boundaries. But I don't actually know that this
would happen.

Lesson - read your contracts.


We actually see similar things with people trying to find loopholes in
the GPL.

As activists it is usually better for us to encourage people to stick to
the terms of their contracts and report eula violations that we know
about. If ordinary users are not inconvenienced by them in practice it
is harder for them to see these things as evil.

> 
>