Re: GtkAda License Question

[M E Leypold <development-2006-8ecbb5cc8aREMOVETHIS@ANDTHATm-e-leypold.de>]

Georg Bauhaus <bauhaus@futureapps.de> writes:

> On Tue, 2006-06-20 at 10:46 +0200, Jean-Pierre Rosen wrote:
> > M E Leypold a �crit :
> > >> users are always
> > >> required by law to ascertain the licensing terms with the licensor. The
> > > 
> > > Which is obvious nonsense, since that would render all GPL licensing
> > > as practiced presently invalid. Also I'd like to ask "which law"? US
> > > law? International copyright law? 
> > > 
> > Hmmm, before making such a statement, you should know that Robert Dewar 
> > *is* a lawyer, i.e. he is a registered expert to the court about matters 
> > of software copyright.
> 
> Also notice that every time you install just about any software,
> then in Europe at least,
> you must explicitly (and knowingly) confirm that you agree to the
> licensing terms.

I'd like to offer 2 observations here (but IANAL):

 (1) There were various companies which didn't think the GPL binding
     for exactly that reason (they hadn't clicked any boxes ...,
     meaning, they hadn't agreed explicitly to anything). Their vie
     didn't hold up in the courts. (It was somthing about firewalling,
     Harald Welte was the owner of the code in question).

 (2) According to the FSF the GPL is no licensing _contract_ but a
     "grant of rights". The other side doesn't need to agree, since
     the default would be "no rights". (Of course Dan Bernstein of
     QMail fame disagrees here).

     This has no impact on Robert Dewar's quote. He holds that
     whatever rights are granted with the file COPYING or in the file
     headers, it's not binding and there are no rights given, you
     "have to check with the licensor". I doubt that.

 (3) If we stay with the contractual model. In German law (which is no
     case law like American or UK law), there is the concept of
     "konkludentes Handeln" which I would roughly translate as
     "implied consent". I have not seen it applied to the GPL
     situation (yet), but the idea is, that a contract manifests
     itself even in simple transactions at the supermarket checkout,
     since whereas both sides probably don't say anything like "I
     agree that I take the money and you get the goods" the
     circumstances and the actions speak for themselves: One gives
     moneay, the other takes it and that is what you do in a super
     market: buying goods.

     Applying that to the usual way of distributing GPL software: Just
     unpacking the sources, reading COPYING and then using the source
     to generate an executable would be "implied consent".

     "Well, Mr. Judge, I read, that they thought that the code should
     be used under the GPL, yes, but I thought it somehow would not
     apply to me or was just any old COPYING files". Rather
     believable.

> I believe it is a requirement of EU contractual procedures that
> you must check corresponding boxes. (Which again is probably not
> enough for such and such, etc...)

I don't think so. There have been some attempts to make it so (EU law
is such a nice argument if you want to twist national law into
something else ...), but mostly with respect to default warranties etc
which can only be restricgted by explicit agreement. That interacts
with the GPL but it's NOT generall required for the user to check
boxes in Europe to get rights under the GPL. I live there.

But IANAL: Don't construe that as legal advice. I'm not a lawyer.

> (Opposed to this requirement, I remember arguments that the
> sentence "by opening this box you agree to ... contained therein"
> is irrelevant.)

That is "licensing". And since you bought the box, there is already a
contract, which cannot be restricted again by a text in the box. Other
situation.


> IANAL.

IANAL2 (I'm not a lawer too). Considering how f***ed up by legal pits
and traps the internet has become, this propably should become the new
standard greeting in forums and usenet. "IANAL!". "IANAL2!". 

Regards -- Markus