Open source license ruled enforceable, hippies rejoice
By Nilay Patel 
posted August 18th 2008 11:44AM
posted August 18th 2008 11:44AM
Good news, open source fans -- copyleft licenses just got a big boost from the US Court of Appeals for the Federal Circuit, which ruled last week that the open source Artistic License is valid and enforceable, and that violating the terms of the license constitutes copyright infringement. (You might be familiar with the Artistic License -- it's what governs Perl.) That's a big deal, as it's the first open source license to get put to the test -- while traditional EULAs have been upheld for years, open licenses hadn't been directly litigated like this yet, and it means that similar licenses like the GPL and Creative Commons now stand on firmer ground. As you'd expect, OSS advocates like Lawrence Lessig and the Open Source Initiative are all pretty pumped about the ruling, with Lessig calling it "huge and important news." We'd agree wholeheartedly, but here's some food for thought while you celebrate in the comments: if you're okay with FOSS software developers enforcing open-source license agreements, are you also okay with commercial software developers enforcing their own EULA restrictions? We can think of one in particular that seems to have people pretty ticked off.Read - InformationWeek article
Read - Lessig blog post
So Democracy is NOT dead huh?
Say what you want about IP law, but this can only be a good thing for innovation. As long as corporations have IP law on their side, it makes sense to grant it to Open Source; otherwise the companies could just steal those ideas, make a profit off of them, and then lock them down with their own patents anyway.
I totally agree. Now the punks who stole code from PearPC for CherryOS won't come back!
I know Engadget is just trolling (as usual... trolls rejoice) but I want to point out that Open Source is the most competitive form of business possible. So I really don't think it is particularly for hippies, although it is nice that it can be inclusive and free to an unparallelled degree.
Apple exploits open source, and sometimes contributes to it, but I think their overall strategy is disingenuous and counter to the development of a free world.
Wow someone who is actually RIGHT for a change. It's for yuppies and upstarters.
What exactly is disingenuous about their approach to open source? WebKit is the only one I've paid any attention to, but a lot of people take advantage of it for anything that needs to render webpages. In addition to Safari, it's also used on Andriod's browser, on Nokia's S60, and in Adobe's Apollo. Seems like a useful contribution to me.
@Will:
"What exactly is disingenuous about their approach to open source?"
See: OpenDarwin
Will, (and I hope for once the Engadget posting software makes this a reply to your comment, even though it refuses to remember my password), maybe disingenuous isn't exactly the right word to use. In a sense, they exemplify the BSD license - take good code, add to it sometimes, but make mostly proprietary products out of it. They don't makeopen source it part of their image, because that could confuse consumers, you have to go to the service door for that. Apple's products are largely funnels to their media distribution empire, they are disingenuous in their flip flopping attitude about DRM and their proprietary App Store that protects their interests more than the consumer (every cell phone uses signed apps, which protect against malicious apps). I don't like that amount of integration. A more open source oriented company wouldn't be afraid to embrace all the potential of new business and innovation, and for me to really love them would be as much focused on taking over the world philosophically (in sharing the wealth) as they are in taking over the world and making One Manufacturer, One Distributor, Über Alles.
Will: webkit is a QT-wrapper around khtml, and a bunch of fixes for khtml. While the name came from Apple, the majority of the code came from KDE.
> if you're okay with FOSS software developers enforcing open-source license agreements,
> are you also okay with commercial software developers enforcing their own EULA restrictions?
Wow... what a ridiculous question. I'll reword it and ask it again:
Are you okay with someone enforcing an agreement?
The A in EULA stands for "agreement". If you don't like the license terms, then don't agree to them. But once you have agreed to a license agreement, it seems reasonable for the other party to exercise their rights as defined in the agreement you just agreed to.
Eh?
Well, there's arguments that an "agreement" at don't-proceed-with-the-installation-point is equivalent to an "agreement" at gunpoint, but I'm not a big fan of that.
The usual, and reasonable, argument is that the EU in EULA stands for end user, and end users expect to be able to use the contents of the media they just purchased; the "default" license for any copyrighted work may be broadly (but, of course, wrongly) be stated as "You can use it, but you can't copy & distribute it", so if users don't agree to the license, then they can use it anyway. (IANAL, but I think this would be a bullet-proof defense if you actually hit No at the EULA, and then went through manually extracting and installing files. Not many people can or would do that, though, and so they just say No while clicking Yes and hope that the courts understand...)
But OSS licenses, OTOH, are binding on resellers/redistributors, who can't sell or distribute copies under the default "all rights reserved" licensing; they either accept the agreement, and comply with its terms, or reject it, and are unable to distribute it at all. There's no argument left that it's non-binding.
What the dispute was actually about, incidentally, was a contention of whether they accepted the agreement, but violated one/several of the terms (mere breach of contract), or rejected the agreement, and copied it anyway (copyright infringement). The lower court said only BoC, but the appeals court vacated that ruling, saying that copyright infringement (which is more robust) was applicable.
> Well, there's arguments that an "agreement" at don't-proceed-with-the-installation-point
> is equivalent to an "agreement" at gunpoint, but I'm not a big fan of that.
So, where exactly is the gun? If you don't agree to the EULA, return the product, per the terms of the EULA or per the reseller's policy.
> IANAL, but I think this would be a bullet-proof defense if you actually hit No at the
> EULA, and then went through manually extracting and installing files.
Hmmm... wouldn't work for any of the products I've sold. You had to agree to license (via the app's interface, not the installer) in order for the license key to be properly installed. And circumventing the key mechanism would result in a DMCA violation.
Here's a solution: read the EULA before the purchase and only agree to it if you find it agreeable. How hard is that?
I have no issues with EULA's or licensing, no matter how odd an unfair they may seem. You can always choose another product
it's patents I have a problem with, they prevent that "other product" from coming to market or being affordable
I used to not care about EULA's, now I mostly avoid software that uses them.
..but I have no respect for Apple EULA's, and will break them without a second thought except
'hey, maybe i shouldn't pay money for something that's not even guaranteed to work on this Dell'
I oppose patents and noncompete licenses.
Competition should be race-to-implement, where coming /up/ with the idea just means you have a head start bringing it to market.
"Race-to-implement" yields bugs and wastes consumer money and planetary resources. We need longer testing phases in technology.
@Chris
I generally agree, except for two things:
1) Many times, EULAs not disclosed before buying the software.
2) EULAs are rarely an easy read. A large company like Microsoft, Apple, or Google has the money to pay lawyers to read over every word with a fine-tooth comb; after all, their software costs millions to produce. An end-user doesn't have the time and money to devote to reading over a EULA for a $10-100 piece of software, one which (if read as a contract) could take away much more in the long term.
Open source license agreements fix the first of these. The terms are disclosed on the internet for reading long before software is made available which use the licenses. A large company could make large or minor changes to each EULA it creates. Just because Company X normally does not say, "By agreeing to these terms, the end user also agrees to a monthly subscription charge of $100 starting one month from the date of purchase," that doesn't mean they couldn't do it later.
Some of the open-source license agreements are also easy to read. Many are very clear and concise (although the GPL is an obvious counter example).
There's no reason that companies could not adopt an open, standard end-use licensing policy. If the policy is standardized and scrutinized, it could be held under whatever legal mechanism (trademark? copyright?) is available to prevent someone or a company from using a modified form of the license.
There's a considerable difference between enforcing a license against another developer who's essentially stolen your code to sell it, and enforcing a license against a user who's purchased your software and wishes to use it, just not in the exact manner in which you intend. The first is more akin to piracy, than a EULA violation for software you own.
EULA's and Open Source Licenses share nothing in common.
You have clear access to the open source license to read and agree to the terms of the agreement before use of the software. Not only that but without the open source license you have no rights to the software. Commercially purchased software must assume use of the software and whatever copying of the software is required to use the software is allowed or the sale is meaningless. Therefore even without a license to use the copyrighted work you have implied rights granted by the sale. An EULA is a license that is supposedly applied AFTER the sale without review of the terms. It would be devastating to our legal system for any seller of product to be able to retroactively (after the sale) apply license terms to software. It's for this reason that commercial software providers can't make it illegal to resell commercial purchased software (not OEM as that's governed by terms of the OEM sale) even though they would like to. So lets be clear, EULA's have almost nothing in common with OSS licenses, the fact is EULA's are at best
semi legal as there are some provisions for them in law, but there is no similarity with OSS licenses.
> An EULA is a license that is supposedly applied AFTER the sale without review
> of the terms. It would be devastating to our legal system for any seller of product
> to be able to retroactively (after the sale) apply license terms to software.
On what exactly do you base the claim that one cannot review a EULA before purchase?
I sell software for a living and I can tell you from first hand experience that it is very easy to review the license before purchase. People do this all the time. In fact, if the purchase is large enough, savvy buyers negotiate the license.
Here's a few licenses for you to review (no purchase required!)
Apple products:
http://www.apple.com/legal/sla/
Microsoft products:
http://www.microsoft.com/about/legal/useterms/
Adobe product:
http://www.adobe.com/products/eulas/
Those three links will get you access to a few hundred EULAs, so I think Trent's point is clearly off the mark.
Savvy buyers ask about the license terms during the product evaluation process and negotiate any parts of the license that are not acceptable. If the seller won't negotiate and the terms are not acceptable, savvy users go find a more cooperative vendor.
Naive buyers do not review the EULA, either before or after purchase. Then they make moronic statements (like Trent's) about the unfair system, being "forced" to agree to unfair terms, etc.
BTW... no vendor tries to make it "illegal" to resell their product since vendors don't create laws, legislatures do. But it's perfectly reasonable for a EULA to include vendor-imposed penalties for reselling a product without the vendor's permission. If you don't like these terms, don't agree to them.
Go to the retail store of your choosing. Buy a random, not prearranged software product. Review the EULA before purchase while in store without using the internet. Keep in mind if you open the box you have already bought the software, and if you open the box you can't return the software. Trying to point to some other location and implying that someone who buys products without reviewing every item about a product on the internet, including reviewing an EULA that they might or might not be aware of being the only logical course (or savvy as you try to imply) of action is asinine.
A license that applies to a retail sale, that is supposed to apply AFTER the purchase has very little weight in trying to restrict the customer from essential rights granted at the time of purchase. If you sell software and don't know that you have MUCH bigger issues, mainly in your knowledge of the law and it's implications to buyers. As a result if you are going to imply your knowledge of how an EULA affects users maybe you should review the laws of the nation so that when you do make a sale you don't make idiotic statements saying software makers can restrict retail sold software from resale with EULA terms.
Trent,
In a previous job I was the guy who got our boxed software product into the retail channel so I am speaking from personal experience. We had boxes of Windows and Mac software on the shelf at CompUSA, Fry's and the Apple Store and we got back PLENTY of returns from retail stores, including boxes that clearly had been sold to users, opened and then returned.
Many boxed software products print the EULA on the envelope containing the install disk. If you don't agree to the EULA, don't break the seal on the envelope and you should have no problem returning the software.
That being said, the savvy buyer stopped buying in retail years ago, except perhaps for things like games, operating systems, etc that are too large and not delivered online.
Outside of the big publishers (who all have put their EULAs online), most productivity software is sold online. Getting the EULA from these folks is easy. Here's a good example:
http://www.realsoftware.com/products/realbasic/license.php
They have a nice summary of the license terms and a link to the full text. Again, please notice that no purchase was required to read the license.
I do not accept the premise that the EULA is only revealed to the customer after he has crossed some mysterious point of no (product) return. A EULA is a binding agreement... violate it at your own risk.
From what I understand, this case was a very narrow decision about copyright protection of published source code. The decision is based on a strict reading of US Copyright law which states that the author of a work retains copyright unless assigned to someone else. In no way did this case resolve *SOME* of the tricky issues involving *SOME* open source licenses like GPL.
I hasten to add that this isn't all joyous news for OSS since it also means that the author of OSS software retains the right to change the licensing terms whenever they please. In other words, a software author could release code under GPL and later decide to remove that license. Any existing use of the code wouldn't be affected (as recent court cases suggest), but it appears that new use of ANY version of the software could be prohibited.
(Point being that the old excuse of; well I can't use version 3, but version 2 was released under GPL and can always be used isn't necessarily true. A further point is that this decision arguably makes the proverbial waters muddier, not cleaner.)
But a separate (though derivative) work based on the old (GPLed) version 2, and released under the GPL, would still be a viable base, in my non-lawyer understanding. Obviously we won't know until someone who is a lawyer (actually, several of them) argue it in court, and appeals run out.
Ah, but the point of this decision is exactly that the original copyright owner may prevent a derivative work from being distributed unless they explicitly granted the author of the derivative work the right to do so. The question is whether GPL (and other open source licenses) are sufficient or if they are overly aggressive in passively granting rights to third parties. (I believe GPL is.)
Until this is fought out in court and appealed, we'll never know. (I do think the OSS doesn't believe their own license since they have gone to great lengths to prevent it from being tried on its merits in court. Large parts of GPL would survive a challenge, but key parts very likely wouldn't, chief among them is the requirement that using GPL code affects MY copyright. Oddly, this very case puts one nail into that coffin, which makes me wonder why the hell OSS people are celebrating.)
Thank you judicial branch ... still coming through. Slowly but surely.
Way to be lazy, engadget. I sent you this article like 5 days ago, it's been up everywhere.
Originally I found it here: http://news.bbc.co.uk/2/hi/technology/7561943.stm
Hey, I was out of town, you know? Even lawyers take vacations.
OSS licenses are not the same as EULAs as OSS licenses generally cover distribution, while EULAs cover use and ownership. Assuming this was more along the lines of a distribution licenses, this is good news for OSS licenses, but shouldn't affect EULAs at all.
For example, I can take GPL'd code, modify it all I want, and never release any of my changes under GPL if I'm not distributing the code. However, non-commercial use shareware licenses are more about use than distribution. This difference also applies to shrink-wrapped EULAs.
Nailed it.
Don't tell me how to use my software. I don't care what you think, and I'm not exactly obedient.
Plus you'll never catch me.
just had to make it an apple post, eh en?
The problem I have with EULAs is that they tend to be getting into the realm of unlawful terms. For example, I have seen EULAs with "you agree not to reverse engineer this software" and such.
I have every right to reverse engineer your software. For example, I may want to reverse engineer iTunes or Windows Media Player in order to create software to interoperate with it. I am not trying to circumvent either of the two's copyright protection, I just want to create a 'plugin' of some sort that is not able to created without reverse engineering. That is legal and I have the right to do so. You are saying because some shrink wrap agreement says that I am no longer entitled to? I think not.
EULAs are completely stupid because not only are they easy to bypass (not agreeing, then extracting the software), but also because they have no proof that I agreed. What if I were to disassemble the code, swap the functionality of the Yes and No buttons and then install? They have no proof that I didn't do that. I 'clicked' No, but it still installed. How does that rule in court? Maybe some of you are seeing my point now. They are very weak 'agreements' legally.
> I have every right to reverse engineer your software.
> ... That is legal and I have the right to do so.
How much did you pay your IP attorney for this opinion?
Oh, what's that? You didn't speak to an attorney? This is just your opinion and you have no legal training and have not studied IP law in the United States?
Great... thanks for sharing your baseless opinion with us. It really adds value to the discussion.
Does it seem counter-intuitive to have such a huge TM after the opensource logo ?
No.
@Chris:
Patents don't prevent just any "other product" from coming out. They *sometimes* prevent *infringing* products from coming out.
@ethana2:
Patents largely *are* race-to-implement, as having a demonstrable example of a technology is among the traditional prereqs for patenting it. If someone else has an implementation (and can prove as much) before your patent is issued, the law is constructed such that you should lose if you sue them for infringement.
@BigD145:
You can implement something (eg - for the purposes of patenting it) without being required to bring the first implementation to market. And while I'd agree that more testing is usually better, ultimately the market decides how much testing is required for a product to succeed. If that holds true even for a new version of Windows, as it certainly did for Vista, it certainly holds true for every other desktop app.
We hippies are awesome.
Uh, obviously? If we didn't care about the license of the software we use, there would be little reason to use FOSS over proprietary/non-free/closed software.
(not to say I don't use proprietary or non-free software, though)