[DMCA-Activists] Infoworld Gripeline: Eliminate EULAs, Keep GPL

[Seth Johnson]

> http://weblog.infoworld.com/foster/2005/04/12.html#a241


Getting Rid of EULAs While Keeping the GPL


THE GRIPE LINE WEBLOG  by Ed Foster

Tuesday, April 12, 2005


Rather than just trying to tame EULAs, as I'm doing with my FEULA
project, some readers argue we should just get rid of them
altogether. While not lacking in sympathy for that idea, I've
always wondered how you could invalidate the bad EULAs without
also invalidating good license agreements such as the free
software GPL. One reader argues persuasively that it could be
done, so I thought I'd share some of his comments with you.


"I am not exactly sure why we need a license to say that vendors
and end users retain exactly the rights they already have under
copyright law," the reader wrote in response to the beta FEULA.
"One of the most fundamental problems with EULAs is the
presumption that they are needed. This approach also completely
avoids the messy problems regarding whether shrinkwrap licenses
are even legal. Copyrights have worked for most other publishers
for centuries. Sure, they have problems, but the only thing that
really distinguishes software is the ease with which it can be
copied. Oops, so can e-books, music, and increasingly DVD's. And
all that EULAs have done is persuade the traditional publishing
industry that they now need one too."

The reader, a big Open Source fan, argues that the GPL works in a
fundamentally different way than EULAs that take away rights.
"The GPL provides the user with rights significantly beyond those
of copyright," he wrote. "I do not believe the GPL in any way
takes away a right you would have otherwise. But it grants some
very broad rights beyond those of copyright in return for
agreeing to some limited restrictions on those new rights."

EULAs on the other hand are based on the very disputable premise
that they are real contracts. "A EULA aspires to be a contract --
if it is not a contract, then it is meaningless," the reader
wrote. "For a contract to exist there has to be an offer and
acceptance, a meeting of minds. These are ancient legal concepts.
For software sold at retail a contract was completed at the time
of purchase. The shrinkwrap license agreement is an attempt to
modify that contract AFTER the fact, something that is possible
but not trivial. To modify the original agreement -- which
basically is you have bought my software for money and have the
right to do whatsoever you please with it constrained only by
copyright law -- there has to be a new offer that has to offer
something of value you do not already have. Otherwise, you do not
have a new contract."

EULAs are just one part of the much larger problem of an
intellectual property system that no longer serves the public
interest. "The U.S. Constitution makes it absolutely clear that
patents and copyrights are there to serve the public interests,
that the interests of the patent and copyright holders are NOT
significant," the reader wrote. "Any intelligent assessment of
intellectual property rights reveals they are at best a necessary
evil. As much as those of us who create patentable or
copyrightable works wish to claim them as our own, they are not.
Patents are legally supposed to be about implementations, and
copyrights expressions, but ideas cannot be owned. It may appear
to be stealing for one person or company to copy the idea of
another. But whoever came up with it in the first place did not
create the idea. It was always there."

"Technology is making it crystal clear that the distinction that
we made in the past between ideas, and their expression or
implementation, is fictitious," the reader continued. "Computer
programs come incredibly close to the pure mathematical
expression of ideas. But our desire to reward those who worked to
produce them has blinded us to the fact that we are selling the
laws of mathematics, nature or God to the first person wise
enough to try and patent or copyright them. The patent system ,
for all its rife evils, eventually expires. Most of the stupid
patents granted today will expire before I die -- absent another
stupid extension into infinity like the last Copyright act."

Ultimately, the reader believes that the marketplace will do the
job of getting rid of EULAs for us. "Of course, why am I arguing
for the elimination of EULAs -- the more egregious the EULA, the
greater the interest in Open Source. In the end I believe in Adam
Smith's invisible hand. To paraphrase: treat customers like crap,
even with the permission of the law, and they will find another
solution."


12:21:33 AM

_______________________________________________
Discussion mailing list
address@hidden
https://mail.fsfeurope.org/mailman/listinfo/discussion




No virus found in this incoming message.
Checked by AVG Anti-Virus.
Version: 7.0.308 / Virus Database: 266.9.6 - Release Date: 4/11/05