23 Oct, 2007, Hades_Kane wrote in the 42nd comment:
Samson said:
This statement is not entirely accurate, even in the US system. Though it often seems this way. There is a such thing as a frivolous lawsuit. I can't sue you, for example, for being a jerk on the forum. The case would get dismissed and I'd likely be facing fines and court costs for having wasted everyone's time. Even if I were right.
Cratylus said:
You're legally in your right to sue anyone for any reason.
This statement is not entirely accurate, even in the US system. Though it often seems this way. There is a such thing as a frivolous lawsuit. I can't sue you, for example, for being a jerk on the forum. The case would get dismissed and I'd likely be facing fines and court costs for having wasted everyone's time. Even if I were right.
Technically, suing someone means to bring suit against. So, I can "bring suit against" you for being a jerk on the forum, and it will get dismissed obviously, but that doesn't mean that I didn't just "sue" you. I think you are confusing "the right to sue" with having some chance of bringing suit against someone and it going to trial. As long as I file a lawsuit against you (regardless of if it is later dismissed) then I have indeed sued you.
In the same way a lot of people think that impeaching a president means forcing him out of office.
So, unless I'm denied the ability to file a suit against you, then I have the right to sue you for anything I want.
23 Oct, 2007, Fizban wrote in the 43rd comment:
Correct, Ex-President Bill Clinton WAS impeached, it always irked me when I hear people say that Clinton was tried for impeachment.
23 Oct, 2007, Guest wrote in the 44th comment:
The right isn't absolute though, which is what Cratylus implied in his statement. You can sue the fleas on a dog's back for irritating his precious thin skin, but when you get to court, and the judge dismisses the case as frivolous, you won't be wanting to do it again next flea season when the judge imposes the legal costs on you for wasting the court's time. That's all I meant. Another case of "just because you can, doesn't mean you should try".
23 Oct, 2007, Guest wrote in the 45th comment:
And yes, Clinton was impeached. He just wasn't convicted of the crime. Much like OJ was tried, but the jury nullified and let him walk. In both cases the guilt of the actual suspect was never properly deliberated.
23 Oct, 2007, Tigwyk wrote in the 46th comment:
To be fair, just because a license states certain things does NOT mean you have to follow it. If the license states things that take away your rights, you can use the software or whatever without expecting that particular part of the license to ever affect you.
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
23 Oct, 2007, David Haley wrote in the 47th comment:
Re: suing, I think you guys are agreeing… you're both saying that you can bring it to court (i.e. the "right to sue") and you're both saying that stupid suits will get dismissed out of hand.
vs.
Seems to me that you want to have the cake and eat it too! :wink: My position is, of course, the former.
Surely you all have heard the cases of EULAs that ask unreasonable things, but the user was later found to be not bound to them even though it was agreed to? That establishes obvious precedence for the idea that just because a license says something doesn't mean you're in fact bound to everything it says. As is usual with the law, the idea of what's "reasonable" is key, and, well, that's what judges and juries do, and lawyers are here to try to convince them one way or the other.
Yes, this is true by definition; obviously, if you did not do what the license said, then you are not following the license. But the story is not that simple, which is what I have been saying. If it's brought to court, the license is tested and you might be found to be in a pickle, and you might not be. It's similar to patents: I claim you're violating my patent, we go to court, and the judge settles it one way or the other. My patent might even be invalidated in the process. Same for licenses. My license says you must give me your first born child. You use my product, following the entire license except you don't give me your child. I sue, but any reasonable person would say it was unreasonable to demand the first-born child in the first place.
Regardless, the issue is completely moot until it's brought to court. The only issue I see as being relevant is a community with some people willing to personally vilify people who dare to even utter a thought against the "community wisdom", and who haven't even done anything. :shrug:
Samson said:
Until someone sues (…) the issue of what the license can and can't do to you is entirely speculative.
vs.
Samson said:
That being said, the author of a work has sole discretion on what others are allowed to do with it.
Seems to me that you want to have the cake and eat it too! :wink: My position is, of course, the former.
Surely you all have heard the cases of EULAs that ask unreasonable things, but the user was later found to be not bound to them even though it was agreed to? That establishes obvious precedence for the idea that just because a license says something doesn't mean you're in fact bound to everything it says. As is usual with the law, the idea of what's "reasonable" is key, and, well, that's what judges and juries do, and lawyers are here to try to convince them one way or the other.
Fizban said:
If you're not sticking to the boundaries set forth by it you are in violation and therefore breaking the license.
Yes, this is true by definition; obviously, if you did not do what the license said, then you are not following the license. But the story is not that simple, which is what I have been saying. If it's brought to court, the license is tested and you might be found to be in a pickle, and you might not be. It's similar to patents: I claim you're violating my patent, we go to court, and the judge settles it one way or the other. My patent might even be invalidated in the process. Same for licenses. My license says you must give me your first born child. You use my product, following the entire license except you don't give me your child. I sue, but any reasonable person would say it was unreasonable to demand the first-born child in the first place.
Regardless, the issue is completely moot until it's brought to court. The only issue I see as being relevant is a community with some people willing to personally vilify people who dare to even utter a thought against the "community wisdom", and who haven't even done anything. :shrug:
23 Oct, 2007, David Haley wrote in the 48th comment:
Ah! I wish I had seen that post before posting mine. The key point being:
That's the position I have been advocating for this whole thread: just because a license says something doesn't mean it is binding.
Tigwyk said:
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
That's the position I have been advocating for this whole thread: just because a license says something doesn't mean it is binding.
23 Oct, 2007, Guest wrote in the 49th comment:
Then let's answer this question. What rights do users have in the absence of a EULA? The only one I can think of would be the implied right to install and use the program, provided it was sold legally.
As it applies to Diku, the availability of it for download gave people the implied right to install and run MUDs with it. The lack of a license wouldn't extend that implied right to "gee, they didn't say I *CANT* make money with it, so I guess I can". You never actually had that right to begin with, since copyright law exists to protect the author's ability to make money on his own creations.
By the same token, a license which tells you explicitly you aren't allowed to make money isn't really helpful since all it's doing is telling you something you already knew. That you don't have the right to use it to make money. This is the main reason the Diku license is poorly worded.
The clause saying you can't charge for distribution, equally redundant. You never had the right to do so anyway.
The clause saying you can't remove the copyright headers in the code and documents is also redundant. You didn't have the right to strip the credits anyway.
The clause saying the license must be included in a distribution, perfectly fine.
The clause stating you need to provide proper attribution if you publish an "article" about Diku, I'm not entirely sure on. Fair Use seems to come into play here. The second part of the clause where you need to obtain permission prior to doing so indicates a lack of understanding of how Fair Use works. Commentary on the codebase would fall under Fair Use, and at least here in the US, that's not something they can stop you from doing.
I'm also not sure they could legally compel you to email them just for running a copy of the codebase. Anymore than Microsoft could legally compel someone to inform them when they install Windows.
The login credits clause might well be the cleanest part of it :)
As it applies to Diku, the availability of it for download gave people the implied right to install and run MUDs with it. The lack of a license wouldn't extend that implied right to "gee, they didn't say I *CANT* make money with it, so I guess I can". You never actually had that right to begin with, since copyright law exists to protect the author's ability to make money on his own creations.
By the same token, a license which tells you explicitly you aren't allowed to make money isn't really helpful since all it's doing is telling you something you already knew. That you don't have the right to use it to make money. This is the main reason the Diku license is poorly worded.
The clause saying you can't charge for distribution, equally redundant. You never had the right to do so anyway.
The clause saying you can't remove the copyright headers in the code and documents is also redundant. You didn't have the right to strip the credits anyway.
The clause saying the license must be included in a distribution, perfectly fine.
The clause stating you need to provide proper attribution if you publish an "article" about Diku, I'm not entirely sure on. Fair Use seems to come into play here. The second part of the clause where you need to obtain permission prior to doing so indicates a lack of understanding of how Fair Use works. Commentary on the codebase would fall under Fair Use, and at least here in the US, that's not something they can stop you from doing.
I'm also not sure they could legally compel you to email them just for running a copy of the codebase. Anymore than Microsoft could legally compel someone to inform them when they install Windows.
The login credits clause might well be the cleanest part of it :)
23 Oct, 2007, David Haley wrote in the 50th comment:
Samson said:
What rights do users have in the absence of a EULA?
The same rights you have as a normal citizen. A license cannot for instance remove your right to challenge something in court in case they do something the law says they shouldn't. It's kind of like sports centers that say they are not liable in case something goes wrong. Well, that's just not true: if you can show that something went wrong because they screwed up and were negligent, they are still liable. There's a big difference between accepting inherent risks, and completely absolving somebody of all responsibility. The problem, as usual, comes to a court of law that will decide whether or not the 'event', whatever it was, was an inherent risk or an act of negligence on the part of the provider.
Basically they cannot take away a right that the law gives you already. Extreme cases would be things like you can't sign yourself into slavery because a license says so; you can't sign away your right to habeas corpus and so forth. Less extreme cases are things like the liability waivers I mentioned.
Samson said:
You never actually had that right to begin with, since copyright law exists to protect the author's ability to make money on his own creations.
This depends on what it means to make money off of somebody's creations. The book example I gave previously is, I find, a fairly good one. Allow me to briefly repeat it:
(1) You write a book that is high literature and complicated.
(2) I write a textbook explaining that book, citing material strictly in accordance with fair use
You can't prevent me from doing this. Now, you could prevent me from selling people *your* book, but you can't prevent me from giving somebody tutoring on your book, nor selling my own book explaining the concepts in yours.
It all depends on what exactly is meant by "using it", really. The license says nothing about receiving money to teach people how to use SMAUG, for example. Nor do I believe they could reasonably expect to forbid any such "SMAUG coder" schools from existing.
(Think about it: if they could, companies would take advantage of this kind of thing and create monopolies on precisely this question.)
Samson said:
The clause saying you can't charge for distribution, equally redundant. You never had the right to do so anyway.
Charging for distribution is one thing. I'm unsure of charging for the medium of distribution. You're saying: look, I'll send it to you for free, you just need to cover the costs it takes me to send it to you.
Samson said:
The clause stating you need to provide proper attribution if you publish an "article" about Diku, I'm not entirely sure on. Fair Use seems to come into play here. The second part of the clause where you need to obtain permission prior to doing so indicates a lack of understanding of how Fair Use works. Commentary on the codebase would fall under Fair Use, and at least here in the US, that's not something they can stop you from doing.
Indeed.
Samson said:
I'm also not sure they could legally compel you to email them just for running a copy of the codebase. Anymore than Microsoft could legally compel someone to inform them when they install Windows.
Another example where something in the license might not be something they can reasonably expect to enforce.
We just established several cases where the license is asking for things that are unlikely to hold in a court of law. For instance, they could sue me for writing an article without their permission, but that wouldn't stand in court. It is not a huge step to make to conceive of the possibility that maybe some of their clauses regarding monetary conditions are also unlikely to hold in court.
23 Oct, 2007, KaVir wrote in the 51st comment:
Samson said:
I wasn't talking about saying he didn't care about other peoples' rights, I was specifically talking about calling him an asshole.
You're reading my post out of context (although I probably should have put quotes around "asshole" and "doesn't care"). What I said was:
"If you're not going to follow the Diku licence, then at least have the balls to follow Noplex's example and admit outright that you're an asshole who doesn't care about other peoples rights."
That was a direct reference to Noplex's previous post, in which he said:
"And, call me an asshole, because I know what the quotes have said from the original authors of Diku (as per the intent of the license), but I honestly don't care."
I strongly disagree with Noplex's view, but at least he has the balls to admit outright that he knows he's in the wrong.
Tigwyk said:
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
An EULA is almost always a contract (there is evidence of offer and acceptance, there is consideration and estoppel, as a commercial agreement there is a presumption that the parties intend to be legally bound, etc). The Diku licence is not a contract (non-commercial, no consideration, etc). Once more, this point has been covered again, and again, and again…
Samson said:
Then let's answer this question. What rights do users have in the absence of a EULA?
The Diku licence isn't an EULA, but rather a copyright licence. As the copyright holders, the Diku team have the following rights:
1) To reproduce the work;
2) To prepare derivative works based upon the work;
3) To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4) To perform the work publicly;
5) To display the work publicly
Those are exclusive rights held by the Diku team. You cannot exercise any of them without the Diku team's permission, and the Diku licence is the only thing giving that permission.
If you do not follow the Diku licence, you cannot legally exercise any of the above 5 rights. That means you can't modify the code, you can't compile it, you can't allow members of the public to connect to it, and so on.
If the licence were found to be invalid, that would mean nobody has any of the above rights (because they no longer have a licence giving them those rights). If the Diku team were to withdraw their licence, that would also mean nobody has any of the above rights (a pretty nasty thing to do, but perfectly within their rights).
If the Diku team were to take legal action, it would be for copyright infringement, and if you don't have a valid licence to hold up and say "This lets me use DikuMUD!", you're not going to have much of a defence.
23 Oct, 2007, David Haley wrote in the 52nd comment:
KaVir said:
If the Diku team were to take legal action, it would be for copyright infringement, and if you don't have a valid licence to hold up and say "This lets me use DikuMUD!", you're not going to have much of a defence.
Do you have an actual court decision to back this up? That is, a case in which a license contains valid and invalid claims, and the accused followed all of them but the invalid ones, and yet the accused was found guilty of copyright infringement? Since court cases are where these things are really decided, having a court decision one way or the other would be a good way to get on the path towards an actual answer.
(Not to nitpick, but you left out provisions for fair use; the rights are not quite as exclusive as you say.)
23 Oct, 2007, KaVir wrote in the 53rd comment:
DavidHaley said:
Do you have an actual court decision to back this up? That is, a case in which a license contains valid and invalid claims, and the accused followed all of them but the invalid ones, and yet the accused was found guilty of copyright infringement?
KaVir said:
If the Diku team were to take legal action, it would be for copyright infringement, and if you don't have a valid licence to hold up and say "This lets me use DikuMUD!", you're not going to have much of a defence.
Do you have an actual court decision to back this up? That is, a case in which a license contains valid and invalid claims, and the accused followed all of them but the invalid ones, and yet the accused was found guilty of copyright infringement?
I don't know of any court cases where a decision was made one way or the other. However to once again quote Eben Moglen:
"Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn't say in the event of trouble "But, judge, the licensee promised me he wouldn't do what he's doing now." The licensor plaintiff says 'Judge, the defendant is redistributing my copyrighted work without permission.' The defendant can then either agree that he has no permission, in which case he loses, or assert that his permission is the GPL, in which case he must show that he is obeying its terms. A defendant cannot simultaneously assert that the GPL is valid permission for his distribution and also assert that it is not a valid copyright license, which is why defendants do not 'challenge' the GPL. (Ref: http://www.groklaw.net/article.php?story...)
And:
"Despite the FUD, as a copyright license the GPL is absolutely solid. That's why I've been able to enforce it dozens of times over nearly ten years, without ever going to court." (ref: http://emoglen.law.columbia.edu/publicat...)
As I said before, Eben Moglen is the professor of law and legal history at Columbia University, and founder, Director-Counsel and Chairman of Software Freedom Law Center. Barring verifiable evidence to the contrary, I'm going to consider his views accurate.
DavidHaley said:
(Not to nitpick, but you left out provisions for fair use; the rights are not quite as exclusive as you say.)
Fair use is a murky area, primarily designed for things like criticism, comment, news reporting, etc (a good example would be my Merc/Medievia comparison). It is most certainly not a blanket pass to let you use an entire copyrighted work for commercial purposes without permission. See here: http://www.copyright.gov/title17/92chap1...
23 Oct, 2007, Cratylus wrote in the 54th comment:
Samson said:
The right isn't absolute though, which is what Cratylus implied in his statement.
I meant exactly what I said: "You're legally in your right to sue anyone for any reason."
My point was about access to the courts in America, not eventual outcome of a suit.
It should be obvious I did not "imply" that I can win a lawsuit against anyone
for any reason.
-Crat
http://lpmuds.net
PS Hope that doesn't challenge your authority. I'd hate to see my disagreement
with an admin get another thread locked.
23 Oct, 2007, kiasyn wrote in the 55th comment:
Cratylus said:
PS Hope that doesn't challenge your authority. I'd hate to see my disagreement
with an admin get another thread locked.
with an admin get another thread locked.
thats really quite uncalled for, grow up
23 Oct, 2007, Cratylus wrote in the 56th comment:
kiasyn said:
thats really quite uncalled for, grow up
Cratylus said:
PS Hope that doesn't challenge your authority. I'd hate to see my disagreement
with an admin get another thread locked.
with an admin get another thread locked.
thats really quite uncalled for, grow up
No, you.
-Crat
http://lpmuds.net
23 Oct, 2007, Fizban wrote in the 57th comment:
Quote
To be fair, just because a license states certain things does NOT mean you have to follow it. If the license states things that take away your rights, you can use the software or whatever without expecting that particular part of the license to ever affect you.
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
It's been demonstrated that certain EULA's violated users' rights and subsequently were nullified.
It's technically impossible for a EULA to restrict your rights. Why? Because it isn't your right to use that program in the first place. If you begin using a program with a restrictive license it couldn't have taken away your rights, you agreed to not do specific things in order to continue being allowed to use that software. Even if the specific things you're agreeing not to do are generally considered rights it still didn't restrict your rights, you agreed to not demonstrate those rights as part of a bargain, and were in no way forced into the license.The moment you break the terms of a software license, no matter how trivial they may be, you are legally not allowed to use such a program. For instance, I see no reason why DIKU wouldn't likely win a case even if it had a better written license that was legally drafted and written by a lawyer to be clearer and more concise even if it said something along the lines of: "By using this software you are are agreeing to send us half of your yearly income. Click Here to Accept." You of course seem to be the type to argue that having to send them half your income restricts your rights as a citizen. Col hard fact is they wouldn't have forced you to agree, it listed a consideration for what ypu must follow to use their software and you would have agreed.
23 Oct, 2007, Fizban wrote in the 58th comment:
Quote
I sue, but any reasonable person would say it was unreasonable to demand the first-born child in the first place.
I wouldn't. I'd say you should have known better than to use a product that required agreeing to such a thing. Mind I'd have to say that's different because it affects the child adversely, not just the person whom agreed, whereas my paying half your income affects you, not your unborn child.
23 Oct, 2007, Fizban wrote in the 59th comment:
Quote
Then let's answer this question. What rights do users have in the absence of a EULA? The only one I can think of would be the implied right to install and use the program, provided it was sold legally.
None. Not even the implied right to run the program. Running the program without a EULA seems to me that it's using software that there is no license for so any use of it would be a infraction. This seems most similar to if I put up a ftp server with my mud and all the files for it on it and asked someone to look through it and help me with a code issue. They would not legally be allowed to download all the files, compile it into mud-form and run it unless I specifically said they were.
23 Oct, 2007, Fizban wrote in the 60th comment:
Quote
As it applies to Diku, the availability of it for download gave people the implied right to install and run MUDs with it. The lack of a license wouldn't extend that implied right to "gee, they didn't say I *CANT* make money with it, so I guess I can". You never actually had that right to begin with, since copyright law exists to protect the author's ability to make money on his own creations.
Sounds like you think I could take a copy of Alsherok, release it and it would therefore be everyone's right to use it as it was available for download. Being available for download would entitle you to download it most likely, but not to run it, at least not in a capacity that allowed other users to connect to it externally.
That is essentially what I was aiming at. David has this strange idea that you can't limit in a license what users can do with your software. What a license does is allows someone to use your software as long as they stick within any limitations set forth by it. If you're not sticking to the boundaries set forth by it you are in violation and therefore breaking the license. By breaking a license you are using software that is not licensed to you and therefore breaking the copyright law.