Subject: Re: Fwd: study of GNU GPL vs MS EULA
From: Rick Moen <rick@linuxmafia.com>
Date: Mon, 28 Apr 2003 21:52:37 -0700

Quoting Dr. Ernie Prabhakar (drernie@opendarwin.org):

> A friend of mine forwarded me this article (and report), which I
> thought would be of interest to the readers of this list.  Has anyone
> else seen this? 

As always, reporter Sam Varghese's comments (the SMH article) are cogent
and useful.  Con Zymaris's licence analysis, on which Sam commented,
struck me as generally a pleasant surprise.  A few points:

1.  From an operational standpoint, comparing the XP EULA and GPLv2
seems strange:  It's difficult to imagine a pragmatic situation in which
the comparison is relevant.  Are we envisioning a developer deciding
whether to link his codebase to libraries under one or the other of
those licensing regimes?  Is the piece an summary of business risks from
relying on code under one licence versus the other?  If so, why not say
so?


2.  At no point does Zymaris explain the surrounding legal framework in
which the two licences operate:  The GNU GPL does not purport to be a
contract (though it has some contract-like language).  Instead, its
basis lies entirely within copyright law, purporting to extend contract
law's default permissions grant for anyone willing to accept attached
provisos.  (I say that at some risk of triggering argument from
listmembers who have previously disagreed -- and yes, IANAL, TINLA.)

The XP EULA explicitly purports to form a contract between each user and
Microsoft Corp., putting it within a different area of law, with some
consequently different required elements (privity, offer/acceptance,
etc.) that may be problematic for the licensor.


3.  In general, it would have been nice to see something about
likelihood of particular clauses being struck down by courts.  Why?
Because I've found that both technical people and businessmen (but
expecially the former) have a bad habit of assuming that anything put in
writing thereby gains force of law -- whereas the software industry has
a long history of laughably bogus "licences" and "agreements" useful
only for cowing the gullible.  

But that's probably outside the piece's scope.  


4:  Quoting:

EULA> Except as otherwise permitted by the NetMeeting, Remote
EULA> Assistance, and Remote Desktop features described below, you 
EULA> may not use the Product to permit any Device to use, access,
EULA> display, or run other executable software residing on the 
EULA> Worstation Computer, nor may you permit any Device to use, 
EULA> access, display, or run the Product or Product's user interface,
EULA> unless the Device has a separate license for the Product.

CZ> Analysis:  Microsoft does not allow you to use general-purpose
CZ> remote-control software such as VNC or PC Anywhere to access 
CZ> this computer.  Microsoft provides its own method of remote 
CZ> access, and appears here to be explicitly disallowing alternatives.

I believe this to be a misreading of the quoted EULA clause.  I think it
says that, e.g., if you have MS Project installed on MS Windows XP
Professional, and wish to run it remotely from your Linux box via VNC or
rdesktop, you may do so _either_ via one of the enumerated Microsoft
mechanisms _or_ provided that you have a second MS Windows XP
Professional licence to accompany your Linux box.  (I'll bet that recent
licences for Microsoft application software such as MS Project include
the same clause, or will shortly.)

I think it's a quite understandable licence provision given Microsoft's
business model, and has been widely misinterpreted (melodramatically so).

-- 
Cheers,                        A: No.  
Rick Moen                      Q: Should I include quotations after my reply? 
rick@linuxmafia.com  
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