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Comment by iplaw | Hacker News Reader

This is what happens when you hire short-sighted attorneys with an unreasonable expectation of success.

What's funny is that Hancom is essentially arguing that shrink-wrap licenses (contracts) are unenforceable. Ghostscript was open sourced under the GNU GPL which states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL. Integrated the software into their own closed-source software and distributing said closed-source software is unquestionable use.

At the same time, you can guarantee that Hancom would fully enforce their own shrink-wrap licenses - Terms of Use, Terms of Service, etc. - on others.

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Shrink-wrap licences are unenforceable in many jurisdictions.

However, GPL still works in such jurisdictions since if you claim that you don't accept GPL then you're violating the copyright law by distributing without a licence to do so. General shrink-wrap licences can't use this logic because (in those jurisdictions?) using software or service doesn't require a licence, unlike copying.

I am not a lawyer, but I don't think "Shrink-wrap License" is legal term. I am pretty sure contracts are valid regardless of the amount of copying and pasting used to make them.

"Post-purchase agreements" are not enforceable in many jurisdictions because they add terms that one side of the agreement did not agree to and many terms of service fall into the post purchase agreement category. It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred.

> I am not a lawyer, but I don't think "Shrink-wrap License" is legal term.

“shrink-wrap license” is a term (that has been used in legal writing on the subject, though it doesn't originate as legal jargon) for a license agreement included within the packaging (which historically was I usually shrink-wrapped, preventing the a customer from reviewing the license text prior a to purchase) of software product that is purported to be a condition of use of the software and which purports to be accepted by use, opening the package, or purchasing the product.

(“Click-wrap” has similarly been used for similar licenses included electronically with software that purports to be accepted by clicking through something in the install process.)

> It is hard to argue that open source licenses are "post-purchase agreement" because no purchase occurred.

Purchase may or may not occur with open source licenses; it may be true that it rarely occurs, though the FSF continues to promote sale of Free software as a viable thing.

Open source licences IMHO should be viewed not as agreements, but as offers of agreement.

You're free to accept the offer, which then implies certain obligations described in the agreement.

You're also free not to accept the offer, which implies the default conditions set by law, i.e., copying and distribution is prohibited without explicit permission of the author(s). For example, anyone certainly can ignore the provisions of GPL and redistribute the software as closed source if they have obtained some other licence from all the authors.

There is an enormous legal difference between shinkwrap licenses that limit your terms, and a license that grants you additional permissions. Your typical "EULA" is the former type. Copyleft licenses like the GNU GPL are the latter type.

A typical "EULA" attempts to reduce your rights, without any further consideration from you (you'll have already paid for it, etc). If you disagree, the authors like to claim that you are bound by their more restrictive terms anyway. That is what is legally dubious.

A copyleft license does the opposite: the software comes with an offer to grant you additional permissions should you choose to accept its terms. You have the option to decline, and nobody is claiming that your rights are in any way further restricted if you choose to decline.

Put another way, you are free to use GPL software without accepting the terms of the license. But if you don't accept the terms, then you violate copyright law every time you make copies of it.

I don't think there is legally such a distinction.

In contract law it is essential that both sides get something of value out of the deal. If not, it's not a contract. This is called "consideration" and it's why e.g. you'll see on the news people pay a symbolic $1 for a failing business or a tumbledown building rather than nothing at all.

For example you can't make a contract in which I just pay you $50 per year. But you can have a contract in which I pay you $50 per year and in exchange you deliver me a girl scout cookie on the 7th of November every year.

The court doesn't (usually) care whether the deal made is a good idea, $50 for a girl scout cookie seems like terrible value, but it _is_ an exchange of two things of value.

Because the GPL spells out what you're getting and what you're swapping for it, it will always satisfy this idea of consideration. In contrast very often "click through" or "shrinkwrap" licenses don't really do so.

I don't know about that. You're getting the right to use the software, which otherwise you don't have.

> ...which otherwise you don't have.

Why not? If I own a chair, I have the right to use it. If I own a copy of the software (that I paid for in a store, for example), then there is nothing in law that says that I cannot use it. I have rights over what I own. Nothing restricts that.

Copyright law exists to protect software writers by providing them with a means to make money making software. This law restricts my ability to make copies. There is no law that restricts my ability to use what I own.

Well obviously their contention is that you're buying a license to use the software and not the software itself. You're free to disagree but it's internally consistent.

They can disagree all they want, but it is on them to prove that I agreed to buy a license, when I am physically holding something I bought. I didn't have to sign a contract for it. Adding terms after the purchase makes it a post-purchase agreement and that is unenforceable in most western jurisdictions.

Somebody should inform all the companies selling enterprise software whose entire model depends on selling seats, then.

Most of those have agreements at the time of purchase. Those are some of the most legitimate dealings in software sales.

Anyway, as I replied to the other guy, Venor v. Autodesk shows that some courts have upheld "shrinkwrap" licensing. I don't think it's a settled question in US law.

That may be their contention, but this is exactly why this is fundamentally different to the copyleft case. The GPL requires none of this.

I would add that it seems pretty specious to argue that I bought a license when the license was not presented to me at the time I paid for the product and left the store, but I accept that this could be their contention.

Perhaps, but not without precedent. https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

(note: the period is part of the URL)

(Note: this isn't true in most civil law jurisdictions)

Agreed, I would like to see some legal precident that proves GP's point.

Additionally, GPL only grants you "additional freedoms" if you're willing to reciprocate. If you want to use it in a closed source work, it very much limits your freedoms. The phrase "permissive license" exist for a reason, and it explicitly excludes the GPL.

> If you want to use it in a closed source work, it very much limits your freedoms.

It's the copyright law which prevents you from using GPL software in closed source works, not the GPL. GPL doesn't care about proprietary software at all, leaving it at the mercy of status quo. It only grants some additional rights to users and developers of free software.

Premise: You have legally obtained a copy of some software.

Status quo: You can use the software. You're not allowed to redistribute copies or modified versions of the software.

EULA: You may only use the software if you agree to additional terms. Usage rights are restricted.

GPL: You may redistribute copies as well as modified versions as long as distribution happens under the terms of the GPL. Distribution rights are granted.

What about the disclaimer of warranty and limitation of liability?

That's a question that has to be answered by lawyers and judges. Personally, I doubt that blanket disclaimers really do much of anything in my jurisdiction.

Disclaimer and limitation of liability is a very old legal aspect about trade law which from a US perspective historically originate from UK law before the time of colonization. It has nothing to do with copyright or technology.

As the story go, someone bought a mill shaft but the delivery was delayed and the customer sued the seller and wanted compensation for the delay. This in turn lead to a legal requirement to make the customer aware of limitations. When the US organization for trade (a name which is escaping me) made their recommendation based on the version of law which was "copied" over, they added that one way to do so could be to use all caps or by changing the color or font, which companies adapted by simply picking the first suggestion.

The distance of the original case of the mill shaft and some open source software thats public available on the Internet for free is quite a far one.

OK, but so what? It still in some sense restricts the rights of the person using the software.

In what sense? You can still use the software, you just can't expect its use to yield a particular result and sue the programmer if it doesn't live up to that expectation.

In exactly the sense you just stated.

That doesn't really affect your rights: You still own the program, you may still use the program, and you may even still sue the software vendor if the program doesn't work as expected.

What the disclaimer is supposed to achieve is state that there was no contractual obligation to deliver a piece of working software. For software distributed free of charge, this might be viable, but I would find it rather surprising if such an obligation wasn't automatically implied to at least some degree by any commercial sale.

But this is above my pay grade as I'm not a legal professional or even amateur, for that matter.

Its not about software, so no, it does not restricts the rights of the person using the software. It restricts the right of the consumer who are in a consumer-seller relation.

Disclaimers are about what the buyer can except and have a right to after a transaction. The product in question is more or less irrelevant, through some laws in some places do consider a free gift to also be a transaction between consumer and seller but with a price of zero. This makes the law more complicated. For example, if a baker gives out free bread samples but that happens to be bad, the baker can still be held liable. However if I give a friend a home made cookie the law could easily treat the two cases in a very different way. As much with the law it depend on the situation and the details and the expectations of everyone involved.

This is in part why some open source project do not include disclaimers. They don't consider themselves to be in a consumer-seller relation with anyone and thus do not need to disclaim any consumer expectation which could occur if there were such relation. Some lawyers disagree with doing so because of the baker example above, through there is a lot of uncertainty and a lawyers job is to consider all possible bad outcomes even those that are unlikely to happen, or as it is to my knowledge in this case, never have happened to any open source developer in the world.

There is no such thing as an EULA attempting to limit your terms. Without a licence, you have no right at all.

In general the claim is that you have particular rights under common law when you purchase something, but the shrinkwrap terms attempt to restrict those rights.

> Without a licence, you have no right at all.

On what grounds do you have no right to use a copy of software you bought without obtaining an additional license from the vendor?

As for copying it's copyright, obviously, but I never understood what's the matter with merely using. IANAL but AFAIK in some EU countries it is recognized that there is no legal basis for EULAs and they officially are void, unless signed as a contract prior to the purchase, of course.

> unless signed as a contract prior to the purchase, of course.

Not quite. There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract). On the other hand, if you do indeed sign an additional contract afterwards on your free will that limits your rights, that might very well be enforcable. But the point is that there is no legal necessity to sign such a contract in order to use the software that you have bought.

> There is no need to sign anything, what matters is if the EULA was included in the sale contract (so, the buyer was aware that the willingness of the seller to sell you the product depended on the buyer accepting those additional terms as part of the contract).

Yes, it doesn't have to be literally signed, but it needs to be an agreement made at the time of purchase. If I agree to buy Windows under the condition that I won't use it for the development of nuclear weapons, so be it.

But it's still not clear why I would need Microsoft's license just to use a copy of Windows I have already bought, sometimes even as part of a computer, which is what parent seemed to claim.

> On what grounds do you have no right to use a copy of software you bought without obtaining an additional license from the vendor

To use software you probably have to install it on your computer - this makes a copy of the software. Then when you run it you make another copy into your computer's memory, and additional copies in the the CPU's cache.

I don't agree with the above argument (I think fair use covers it), but I have heard it. It isn't hard to read the letter of the law and conclude the above is the correct interpretation. (you might need to see some money...)

I honestly do not know how to fix the letter of the law. There are too many special cases. If I have two computers can I install it on both? Can I install it for my family to use? When my computer fails can I install it on the replacement? The above are trick questions: I deliberately asked them to invite answers that imply I can install one copy of software on as many servers as I want for as many users as I want - this seems wrong.

The First Sale doctrine gives people who _buy_ something all rights needed to make use of it.

It is... disappointing that modern courts have allowed the First Sale doctrine to be watered down so that today there's every chance you will buy something, paying good money, and then be confronted with new "terms" for how you may use the thing you purchased. But it's not in general clear that such an approach is legal.

What if the EULA applies to a software product you have bought for money and have received a copy of?

If it does not include an EULA, are you not allowed to use it? Does the same hold for computer games with an EULA?

Or does the existence of an an EULA hold your rights hostage until you agree to it?

That's not true. When was the last time you saw a EULA on a book or a CD? Software is not fundamentally different. I give you money, you give me a copy of the product, and then copyright law lets me use that copy within certain bounds.

Microsoft printed (not sure if it still does) its EULA on the actual physical software packages.

I mean that the legalities around software are not fundamentally different. The culture around software sales is different. Buy a music CD in a box, no EULA. Buy a software CD in a box, EULA. For no apparent reason.

"EULAs on a book" is basically the practice that the First Sale Doctrine is meant to curb. To wit:

"This book is sold subject to the condition that it shall not, by way of trade, be lent, resold, hired out, or otherwise disposed of without the publisher's consent in any form of binding or cover other than that in which it is published."

from https://books.google.com/books?id=v-yrLmQNRvsC&pg=PR4 , but there are many other examples.

Many publishers really didn't like used bookstores and libraries making a single book available to many people over time, replacing the covers as necessary due to wear instead of buying new copies of the book.

I understand why they don't like it but

1) Books go out of print and they don't have anything to sell anymore.

2) A replacement book could cost more than a new cover. I bet libraries would be happy to return the old worn book and get a pristine one, possibly of the same edition, for the cost of fixing the old one.

That doesn't happen, maybe it's even an unprofitable business for publishers, so long live to the First Sale Doctrine.

> A replacement book could cost more than a new cover.

Right. The language above was an attempt to force libraries to buy a brand new copy anyway, and make reselling used books more difficult. In case it isn't obvious, replacing covers is much more common, and gives excellent results, with hardcovers (look up book rebinding).

Also related is the practice of retailers "stripping" a paperback book of it's cover rather than returning it to the publisher. Publishers would therefore like it to be illegal to buy and sell books without covers, or with replacement covers: https://en.wikipedia.org/wiki/Stripped_book

What are you talking about? There is no such distinction. The GPL derives its enforcability from the same principle EULA's do.

Umm, so when you buy a copy of a proprietary software, why don't you have to sign and/or agree to the EULA?

Also, does the seller have to reimburse you if you decline the license (and of course return the copy)?

So you pay for the copy but not for the license, and you got the license free if you paid for the copy, right? (But of course that license comes with a lot of restrictions, just like the GPL.)

But the important thing seems to be that the GPL binds distributors. It's a contract between developers and distributors. (Sure, it's a contract between anybody that acquires a copy.)

Is there a coherent legal overview of this?

You usually have to agree to some EULA. It's part of the contract. Second q depends on whether you could have known what's in the EULA before you bought it. They're not separate things. There is no such thing as 'buying' and 'agreeing to a licence' or anything like that. A 'licence' is just a contract: party A pays $X to party B, in exchange for which party B lets party A copy its IP, under a given set of conditions. 'pay for the copy but not for the licence' is a grammatically correct sentence but meaningless, like when I'd say 'I punch this wall red with my horse'. Copyright is about 'copying', so if that's what you mean by 'distributors', then yes. But so do 'EULA's' and all other IP-related contracts (usually called 'licences').

As to your last question: yes there is, people have written dozens of book about it. Your local university probably has a bunch of them in their library. If you're asking about a website where you can read in a few paragraphs the complete legal context with definitive answers to questions about general cases (i.e., no 'it depends' allowed) - then no, such a thing does not exist. Look at it this way: if a novice programmer goes onto LKML and says 'hey guys, I want to write an OS, can someone point me to an overview' - then at best he'd be pointed to some high-level overview Wikipedia pages, but most likely, people would snicker and press 'delete' (well actually he'd probably receive a bunch of abuse on how he should get off the list, but that's specific to the example I chose...)

FWIW, I did read a bunch of book like the ones I mentioned above when I was writing a paper on a EULA-related topic during my law degree, and as a result I don't make any blanket statements about the topic any more.

> FWIW, I did read a bunch of book like the ones I mentioned above when I was writing a paper on a EULA-related topic during my law degree, and as a result I don't make any blanket statements about the topic any more.

Thanks, that's a completely satisfactory answer. (It's the Feynman-style "it's complicated, and any analogizing just makes it incorrect, thus making the analogy (or simile) useless" answer.)

And okay, they're are not separate things, but this sort of problem seems like what SCOTUS spends long minutes discussing in oral arguments. Because they are indeed separate things, one is a (physical or digital) copy and one is a grant of IP rights. At least't that's how I use the word. At least that's the piece of abstract thing that's necessary to make the copy non-infringing, right?

But, then, it comes down to good or bad faith of the seller. If the seller/vendor does not disclose the exact terms, but gives you the impression that after paying you you can use said copy for such and such purpose, that's seems to be 'false advertising'.

> The GPL derives its enforcability from the same principle EULA's do.

No. A user is not required to agree with GNU GPL license terms to merely install and use some software licensed under GNU GPL. GPL comes into scene only when some (re)distribution of the code/binary happens.

So, GNU GPL has not much to do with End User License Agreement because the end user never have to agree with GNU GPL unless he/she is going to add one or more link to the chain of users.

> states, in shrink-wrap fashion, that use of the software without an explicit commercial license binds the user to the GNU GPL

Not quite technically!

The way it works is: you have no permission by default under copyright. The only permission you have to copy is the GPL. If you obey it, fine. If not, you're just violating copyright like any other copyright violation.

This can be an important point: it's a license, not a contract.

It may be unfortunate that the judgement uses the word "contract", presumably because that's the word the defendant used.

A license is a contract. I don't understand the artificial distinction between the two, specifically in reference to GNU GPL.

http://www.technollama.co.uk/a-licence-or-a-contract

I like how correct comments like yours around here every time gpl comes up are downvoted to oblivion. shows there's load work to do from the eff to educate people at wtf gpl is

Well, that's what happens when people use wrong terminology and instead of explaining or suggesting fixes you just go "nope, you are wrong, every X is Y because Z says so". And I didn't downvote this post, btw.

On a tangential note, there's also a load of work to do from somebody to educate you wtf EFF is and why it doesn't care about the GPL and who actually does care ;)

there's load work to do from the eff

FSF

Because, as your article points out, in the US there is a requirement for consideration. Sure, the GPL might be a contract somewhere outside of the US but who cares? The ruling was in California.

A lawyer's job is ultimately to present the strongest case that they are able. If the strongest case they are able to present is not very strong I guess they're in trouble.

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