Subject: Re: Interesting POV on free software licensing
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Wed, 13 Oct 1999 15:47:56 -0700

Richard Stallman wrote:
> 
>       As such, the movement is, if not dependent on, at
>     least availing itself of the tools provided in copyright and shrinkwrap
>     licensing law and practice.
> 
> The GNU GPL uses copyright, but NOT "shrink wrap licenses".
> This part of the GPL explicitly says so, and explicitly
> rejects the notion that we have imposed a contract on someone
> for merely installing and using the software:
> 
>       5. 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.

Yes, but...  Gomulkeiwicz does make the point that this is a
non-negotiable, take-it-or-leave-it license.  The terms of the GPL are
not negotiated between the parties of the transaction -- in fact, often
*neither* party has the right to change the bulk of the terms if the
transfer is a transmission of the work from one licensee to another. 
The mechanism of assignment of the GPL differs from that of clickwrap,
but I don't understand the particulars of law which affect this, and how
the GPL mechanism is or isn't similar under UCITA and 2B.

There are several public software licenses which specifically *do*
function via "click" mechanisms.  This is built into the text of the
MozPL, and is IIRC how the IBM PL and Sun Community Source License
(other faults excepted) are transferred.

 
> I think that the purpose of the paper could be to mislead the public
> about this issue, to portray UCITA as helpful to the free software
> community and ask for support dishonestly on our behalf.

The only thing I'm certain of in this paper is that its motives are
obscure, and possibly multiple.  Senior corporate counsel for Microsoft,
BSA's chair for UCITA, and now a champion of free software?  My head
spins.

I do suspect that championing UCITA and 2B are an intended goal of the
piece.

Despite the tangle of influences, I also think that free software's
tools for ensuring access to its works are actually helped, rather than
hindered, by laws granting more and stronger powers to copyright holders
through both copyright and licensing law revisions.  I don't see us
wanting or requesting these changes, but we can certainly utilize them.  
We certainly don't have to support them -- free software stands to win
whichever way the UCITA 2B reforms go.  There are certainly UCITA
provisions which look like they will be generally harmful to personal
freedoms.

 
> Can you tell me the email address of the teacher of this Berkeley
> course?  I would like to write to per about this.

Sent via private email.  Others may find it at Pamela Samuelson's
homepage:  http://www.sims.berkeley.edu/~pam

Samuelson is a long-time critic of conventional IP protections for
software and digital media.  She advocates sui generis ("it's own type")
special protections combining a blend of copyright and patent
protection, for software.  She has a regular column in one of the ACM
magazines.  She's generally fairly well received by the technology
industry, but is considered controversial and unorthodox by many legal
scholars.  Her research and analysis are deep and brilliant.  I tend to
disagree with her conclusions, though.

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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