> Fortunately, free software licences don't typically require any kind of
>  agreement from the user,

Ah! I think I see what is happening. You may be making the assumption
that American courts actually try to do what is just and right instead
of slavishly following the arcane and convoluted rules of contracts
and intellectual property law.

I share the view of most practitioners that American courts will treat
the GPL as a contract, despite the FSF's vehement protests to the
contrary. If the author of the software wanted only the rights
provided by pure copyright law, the GPL would not be necessary at all.
(Musicians don't include a license agreement with their music because
pure copyright law protects them.)

Although the GPL explicity grants usage rights, as you rightly point
out, the GPL must create an enforcable contract in order for the
"copyleft" provisions to be valid. American courts require some
objective indicia of "acceptance" before finding the "meeting of the
minds" of both parties necessary to enforce the license. If the
license is never objectively "accepted", its terms will not govern the
software, irrespective of the subjective awareness of the parties. The
following language of the GPL is illustrative:

"You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission to modify or
distribute the Program or its derivative works.  These actions are
prohibited by law if you do not accept this License.  Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it."

(Note: It's hard for many of us to buy the FSF's argurment that
contract law doe not apply when the GPL itself contains such pointedly
contractual language.)

Most practitioners concur that American courts will require that the
putative licensee have an opportunity to review and accept the license
before taking any action the license purports to govern. If someone
purchases a computer with GPL software preloaded, the purchaser and
any subsequent transferee would have a strong (and, I am convinced, a
winning) argument that the license was never accepted and does not
govern.

For example, let's say that Pancho buys a computer with Ubuntu
pre-installed, and no license documentation is included with the
computer. Nothing puts Pancho on notice of the terms of the several
licenses governing the software in his computer. He's just a regular
guy that wants to use the computer to surf the net, etc. Over time, he
uses more and more of the hard drive space and starts running out of
room. He asks his buddy about it, who suggests that he delete the
/usr/share/doc directory in order to free up some space. Again, so
far, nothing has happened that would put Pancho on notice of the
license terms or even that the license exists. He uses the computer
for a couple more years and then decides to get a better computer. He
cleans out his personal files and gives the computer to Dario, his
cousin. Dario is a bright young man who likes to tinker. He knows how
to program in C and find in the machine some way-cool code that he can
use to write some software that he compiles and sells as proprietary
software. The author of the original code finds out about it and bring
suit against both Pancho and Dario to enforce the license. Result: The
author loses. Holding of the court: Neither Pancho nor Dario
"accepted" the license because they never had reason to know of its
terms.

On the other hand, if documentation provided to Pancho when the
computer was originally purchased contains the terms of the licenses
governing the software, Pancho would have accepted the license when he
commenced using the computer and would thereafter be subject to
license when he transferred the computer to Dario. The case against
Dario is a difficult one still, but at least the author could argue
that Pancho's convenyance of the computer to Dario was subject to the
license because Pancho cannot convey more rights than he has.

I am aware of the arguments made by the FSF and some other advocates
of open source, and their arguments may prevail in subsequent
litigation. However, the prudent course ex-ante would be to forestall
any argument that a purchaser never agreed to the terms of the
license. I do not believe that oem-config is the right place to do it,
but I am firmly convinced that as a community we need to create some
sort of comprehensive license management functionality.

My thinking is that there should be a searchable and sortable license
management program, which could print out a list of installed packages
grouped and sorted by license and could print out a copy of each such
license. In any event, it's something my company needs, so we'll
likely have to write it if no one else wants to. If we can work up a
requirements document for such a program, I will endeavor to get it
written.

Happy Trails,

Loye Young
Isaac & Young Computer Company
Laredo, Texas
http://www.iycc.biz


On Tue, Mar 4, 2008 at 4:01 AM, Colin Watson <[EMAIL PROTECTED]> wrote:
> Fortunately, free software licences don't typically require any kind of
>  agreement from the user, so I don't see that there's much to enforce as
>  far as end users are concerned. The GPL is most explicit about this
>  ("The act of running the Program is not restricted" in GPLv2 or "This
>  License explicitly affirms your unlimited permission to run the
>  unmodified Program" in GPLv3), but it's largely true for others as well;
>  I can't think of any free software licences for which it would even be
>  possible to enforce any licensing conditions on an end user. It's only
>  modification and redistribution that really matters, and for that I
>  believe it's the modifier/distributor's responsibility to figure out
>  whether they have a licence to do so; music doesn't typically require
>  you to agree to a licence up front, for example, and music producers
>  seem to have no trouble enforcing copyright on redistribution. :-) I
>  certainly think it's good to let people know that free software is
>  involved, but this isn't shrink-wrapped proprietary software where the
>  user has to agree to an EULA first.
>
>  If you have proprietary software involved, then it might well be a
>  different case, and you're welcome to work with me to get something
>  displayed at the start of oem-config.
>
>
>
>  --
>  Will we display license issue before install ubuntu
>  https://bugs.launchpad.net/bugs/125984
>  You received this bug notification because you are subscribed to oem-
>  config in ubuntu.
>


--

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Will we display license issue before install ubuntu
https://bugs.launchpad.net/bugs/125984
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