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from the click-to-agree-information-wants-to-be-free dept.
Software developer Bryan Cantrill has a second, more detailed, blog post on EULA plus Copyright frankenlicenses. The combination of the two appears to bring in a lot of baggage from both proprietary licensing and EULAs while being dressed up as FOSS. He writes a blog post in response to a longer discussion on HN and blog post from the CEO of Confluent. He discusses the situation, raises quite a few questions (three are quoted below), and concludes with an assessment on the seriousness of the problem and a call to action.
This prompts the following questions, which I also asked Jay via Twitter:
1. If I git clone software covered under the Confluent Community License, who owns that copy of the software?
2. Do you consider the Confluent Community License to be a contract?
3. Do you consider the Confluent Community License to be a EULA?
[...] To foundations concerned with software liberties, including the Apache Foundation, the Linux Foundation, the Free Software Foundation, the Electronic Frontier Foundation, the Open Source Initiative, and the Software Freedom Conservancy: the open source community needs your legal review on this! I don’t think I’m being too alarmist when I say that this is potentially a dangerous new precedent being set; it would be very helpful to have your lawyers offer their perspectives on this, even if they disagree with one another. We seem to be in some terrible new era of frankenlicenses, where the worst of proprietary licenses are bolted on to the goodwill created by open source licenses; we need your legal voices before these creatures destroy the village!
(Score: 2) by exaeta on Saturday January 12 2019, @05:05PM
I'm not a lawyer, but I suppose you could consider me a paralegal as I have (some) experience with the legal system.
First, these contracts of adhesion are sometimes enforced, such as in warranty agreements, where you seek a benefit from the contract. I.e. the warranty. In other cases, they have not been enforced, even by the same court such as the 11th circuit and even with regard to the same subject matter (warranties). Reasoning is pretty simple though, contract law varies between different states, and is usually a fact intensive inquiry that broad statements aren't very applicable to.
Some states have stricter requirements as far as what constitutes "accepting" a contract. In some, you might be considered to "implicitly accept" a contract if you A) have notice of the contract's existence and that it applies to the transaction and B) you continue with the transaction. This "implied acceptance" can get murky fast, as you can say, for example, if you purchased some good you have an implied right to use the good without accepting the "contract" and thus your use doesn't constitute implied acceptance.
So for instance, when trying to enforce a warranty in Florida, the 11th circuit found an arbitration shrinkwrap agreement valid, most likely because they were trying to utilize the manufacturer warranty which came with those terms. But in other cases courts have neglected to find the arbitration part enforceable. I suspect this was because the manufacturer in the latter case may have advertised the warranty on the outside packaging, thus creating an implied contract for warranty but not an arbitration agreement that was accepted and became enforceable when the buyer purchased the product, and the later shrinkwrap contract didn't need to be accepted to utilize the warranty.
In general, contracts need three elements to be enforceable:
What exactly constitutes accepting a contract varies a lot depending on jurisdiction. Obviously if you sign a physical contract, you "accept" it, but when an "implied acceptance" is created is another issue. Duress and lack of consideration can also be defenses to contractual formations.
As far as software goes, you generally don't need to accept the license to software that you buy, however depending on your jurisdiction, you might "modify" the contract by accepting the EULA. Your best recourse is (probably) to file a lawsuit against the seller for declaratory judgment after purchasing but before accepting the EULA alleging breach of implied warranty of fitness for a particular purpose, breach of implied contract, or some similar grounds. In some cases, you might be able to get away with "accepting" the EULA if there is a "lack of consideration" by accepting it because all the rights it gave you were already implied rights from the purchase or transaction. The exact circumstances of whether or not you can "accept" the EULA without being bound by it depends on facts and your jurisdiction.
EULA are contracts, and there's no difference between a "contract" and a "license". In the sense, an "EULA" is a contract which gives you a license to replicate a copyrighted work. However, you (generally) don't need copyright permission to use software. Even a few courts that issued ridiculous rulings, such as the 9th Circuit's decision that running software requires copyright license because the software is copied in RAM, overruled itself later. The only thing to watch out for, as far as I'm aware, is the Court of Appeals for the Federal Circuit, which unfortunately a well crafted dispute can appeal to from any jurisdiction. If you were in the unfortunate position of being appealed into the federal circuit, expect most of your rights not to apply. What I would do is cite as many copyright cases from your numerically assigned circuit and then appeal to the Supreme Court pointing out any differences between Nth circuit law and the Federal Circuit's monstrosities of precedents. A circuit split should give you a decent chance of getting certiorari (which is still unlikely, unfortunately).
Ultimately, the Federal Circuit seems to have little regard for nuances of state contract law, and is well known for completely disregarding Supreme Court precedent, so there's not much you can do apart from ask the Supreme Court to overrule them (which it does on a regular basis). In my opinion, we should remove Federal Circuit jurisdiction over non-patent issues, or just eliminate it (the court is known for issuing terrible rulings).
The Confluent Community License Version 1.0 is definitely a non-free license. It prohibits use as a service. You need permission to prepare derivative works of a copyrighted work, thus it seems like it would be mostly enforceable. I give it two thumbs down.
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