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Censorship

Cphack, the GPL, And So Much More 183

yankeehack writes: "This is a new article by Declan McCullagh (Wired Magazine) describing the confusion swirling around the CPHACK ruling of Monday, March 27th. What exactly does Mattel have rights to? And what about those who own a copy of the cphack program currently? Read the opinions of some prominent legal scholars on this issue." ery worth reading.
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Cphack, the GPL, And So Much More

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  • by Anonymous Coward
    i could REALLY use some software that blocks everything but porn. i spend way too much time searching thru garbage trying to locate porn.
  • Proving once again that a BSD license is FREE in every respect, whereas GPL isn't.
  • by Anonymous Coward
    Sorry, I am just tired of OpenSource being on the defensive always? So what if Mattel has a well funded legal department? Putting it simply, the British had a well funded military in 1775 and the Americans revolutionaries still beat them. The American lost every battle (almost) but managed to win the war because they never lost sight of the big picture and stuck to their strategy. Lets devise a strategy and go on the offense. Why don't we sue Mattel for trying to suppress software that is GPL'ed? Start educating Law Schools and surely some students and a professor or two will help our cause just for the experience and the bragging rights if they succeed! Sorry to use AC but I am far from my PC. Give me liberty or give me death!
  • According to the author's homepage [islandnet.com], cphack IS NOT GPL'ed. Therefore, it is copyrighted material. No test case at all!
  • Instead of releasing a program to decrypt the blocked list sites, release the blocked list to the New York Times or Washington Post. Those guys will defend their first amendment rights.

    Or won't touch it at all, to avoid getting sued for libel. Anyway, the only proof that the list is not a total fabrication is the program itself; I'd say that the list without the program is not worth very much.

    ---

  • by Eccles ( 932 )
    This is all assuming that the GPL is, in fact, revocable. That still sounds kind of fishy to me.

    It does to me too, I was just explaining the possible legal "logic." Particularly disturbing is the judge warning people about possible contempt of court; not being a party to the court case, how can I possibly be expected to have heard the judge's warning? And in general, gifts are allowed and aren't revocable by the giver.

  • What prevents me from taking the source code changing a variable name here and there and re-releasing it as kcahpc ???? Sign over the rights to FSF??


    Copyright law.
  • I agree that it would be scary if the GPL could be revoked at any time because it doesn't constitute a valid contract.

    Note that this would also endanger multi-author projects like Linux: What if person X, who has various patches in the kernel, sells the rights to Microsoft which then proceeds to revoke the GPL on those patches? They would have to be removed from all distributions immediately.

    Maybe a slight change to the GPL could help. A valid, non-revocable contract in the US requires that both parties provide something of value. What if the GPL said something like

    "In return for a non-exclusive, non-revocable right to copy, change and distribute the software, recipient agrees to provide valuable feedback in the form of bug reports, feature requests or patches".

    --

  • by Anonymous Coward
    They mention:

    Unless Jansson and Skala formally -- using paper and pen and a signature -- signed their rights over to the Free Software Foundation, Mattel may be able to sue over a potential copyright violation.

    This isn't right. Whoever wrote this seems to think that the GPL works by assigning copyright to the FSF and that the FSF then grants people permission to make copies. It's not like that.

    The GPL works by giving the recipients a license to distribute under certain conditions, which works recursively. At no point in the process is the FSF involved. While it is true that in the absence of a signature, the program would not be owned by the FSF, it doesn't *need* to be owned by the FSF in order for the GPL to apply. Although the FSF does like to have the copyright of GPL programs assigned to it, this is purely optional and doesn't affect the GPL itself.

  • by Eccles ( 932 )
    A particularly interesting piece is an off-the-cuff comment at the end of the article which says that free licenses are generally held to be revokable.

    This sounds like an extension of contract law, where contracts can't simply be one-sided -- each party has to give the other party something. I could pay you a dollar for GPLing your code, and you would not be able to undo that GPLing without my consent. (You could, however, undo it *with* my consent.)

    Note that for a piece of GPLed software with a number of authors, I would think *all* the authors would have to agree to change it from GPL. So Linux is quite safe.

    As usual, I'm not a lawyer...
  • That's not how copyright law works. Unless the software is explicitly made public domain, it has one or more owners. Everybody else have, at best, a license to the software. Only the owner can sign over ownership. If you have Emacs, you have a license (the GPL) which allows you to use and distribute Emacs under certain conditions. But you cannot sign over ownership of Emacs to Microsoft. Only the owner, the FSF, can do that.
  • Hey, nothing prevents you mate. Since you're so upset about people selling out, why don't you just go ahead and do what you suggest?

    While you're at it, find a copy of the software from a mirror that's still up, put it on your site, and tell Mattel about it. Then we can all watch you not selling out and spending years fighting them. Go on. Email me when you've done it.

    Cheers,

    Jon
  • If you signed (in ink) the registration form, in front of a witness, and made a photocopy before sending it in, you'd meet the requirements in a provable and verifiable way.

    If you didn't, hope.

    Personally, I rather like this lawsuit - the worse the judge is (from the Free Software perspective), the more expensive IT departments will get. Suddenly. As individuals, we don't have much power. But your boss' boss' boss probably plays golf with Senators or appeals court judges. If he's been hit where it REALLY hurts (the bank statement), this might end up destroying not the Free Software movement but the Corporate IP movement.

    If you can't fight the attack, relax, just turbocharge the backlash. You might not be able to fight Mattel, but someone way above you in your company knows a man who can.

  • like why companies should have the right to say "no reverse engineering" and "no talking about our product in public".
    Just like companies aren't able to disclaim away their responibilities when it comes to operational safety or quality of information, consumers should not be able to click away the right to peek under the hood or form a user's group.

    How many of these sorts of things have actually been tested in court? Not Mattel's latest, that was settled. Is this why the DCMA (is that right?) is being put in place - to actually cement in a company's ability to demand unreasonable stuff from consumers? Slipped in under the radar of a poorly informed and disinterested government... What happened to "the customer is always right"?

  • The consideration isn't the expectation of improved code from others. The consideration is the promise to disclose the source code to any changes you distribute in binary form, and the promise to make the improved source code available under the terms of the GPL.

    Consider a contract in which you license a patent for use in your product, in exchange for, say 1% of your gross product sales, if any.

    The required public disclosure of functional, useful computer source code is VERY valuable consideration.

    In fact, The GPL differs from the BSD license in that the GPL requires such consideration. The BSD license is more of a gift license then the GPL, and could therefore be found to be unenforcable.

  • This Boston Herald story [bostonherald.com] speaks of the judge's decision. I can't help but think in all of this, knowing that Boston Herald is more regarded as a right-winged newspaper, where's the other side of journalism when it comes to newspapers like the Herald? It barely even mentions in it that the hackers had a purpose other than allowing all the "smut" to get to the "children's fertile and formative minds"...

    How can we increase the awareness of the journalists on issues pressing our rights to learn more about insiduous programs like CP? The people who are in authority over deciding the fate of things like this (like judges and senators) need to be briefed on our issues, and they won't go out to wired.com or slashdot.org to appease a non-existant craving for knowledge on why what they're doing may have a larger ramification than they realize. They'll just stick to the newspapers and columns they read anyways...

    My point is, though both sides of the story exist, and we all have our personal beliefs laid out, it doesn't do any justice until our representatives and people of power make decisions for our rights...

    Just my 2 centz.

    --
    BlackHat Linux 6.66 (Discordia) :: Hail Eris!
    Dan Kissam e-mail: teeheehee@yahoo.com
  • ...In a better world:

    Maybe Mattel should partner with WAVE--anyone trying to get around CyberPatrol or run CPHack against it will be automatically reported to WAVE and have 'counselors' show up immediately to 'talk' to this offender of common social values about why they don't NEED to know about breast cancer, safe sex practices, STDs or the like.

    *sigh*
  • The explanation is that, in order to maximize page views, Slashdot puts up stories at assorted times. That story [slashdot.org] was meant to be displayed at noon, and somehow it got out earlier.

    That's the explanation. As for reasonable, I'm not sure.

  • The path forward is clear to me. We need to come up with a general purpose program that knows about many different encryption methods and file formats, and how to get around them. As part of this program it should have the ability to deal with new methods and file formats with either loadable modules or easily extensible source. It should have automated tools for dealing with all known encryption methods, and all know wrappers to those encryption methods.

  • As an alternate: We need to come up with a general purpose program that knows about many different encryption methods and file formats, and how to get around them. As part of this program it should have the ability to deal with new methods and file formats with either loadable modules or easily extensible source. It should have automated tools for dealing with all known encryption methods, and all known wrappers to those encryption methods.

    The program would be a general purpose tool. It would contain generic tools for analysing and decrypting encrypted data in files, streams, etc. Once a specific format is determined a template could be built to automate the decryption process for that format. The point is the tool is generic, and not specific to any one system. The templates allow the transfer of knowlege of how to deal with specific systems.

  • Although Wired says that 205e requires a "paper and pen and a signature" for a prior nonexclusive license to prevail over a copyright transfer, the actual wording is "if the license is evidenced by a written instrument signed by the owner of the rights licensed".

    The code itself containing the "released under the GPL" comment is a written instrument, so it comes down to whether a handwritten signature is necessary, or if the fact that the instrument itself is the thing copyrighted (or vice versa) makes the signature implicit. The signed instrument merely serves as proof that the license has been assigned, but that seems redundant if the copyrighted work includes the authorizing language.

    Ultimately it'll depend on how literally a given judge interprets the law.

    For a nightmare scenario, if decided in Mattel's favor it would allow something like Microsoft paying, say, Linus Torvalds whatever it takes to obtain the Linux copyrights and then them shutting down everybody else (who doesn't have a paper signed by Linus explictly licensing the code to them).

    Signing over all the rights to FSF is one solution, but then the author has lost control. It might be satisfactory to sign a copy of the GPL (tweaked as necessary) granting FSF nonexclusive GPL rights (which includes redistribution). If digital signatures are acceptable then digitally signing the released code (which includes the necessary comments about GPL) should be all that's needed.

  • > I think the program and the paper describing the encryption will be successfully deep-sixed.

    Actually, if you happen to have a copy of the paper you can still quote it under the fair use doctrine, whatever the copyright holder says about it.

    Of course fair use does not allow posting the entire article [usc.edu], but it does cover citing parts of the article verbatim if you are discussing it or merely want to drag it in to make a point. For instance, if you were trying to convince your local library not to install Cyber Patrol, you could cite the article's claim that the Church of the SubGenius site is blocked in all categories except sex education.

    Of course, the established doctrine of fair use does not mean you won't be getting e-mail from Mattel (You can tell it's from Mattel, it's e-mail!), but you could presumably get a clean win on that one in court, and perhaps even a cease & desist against Mattel.

    Oh, yeah: IANAL. If you get thrown in the Mattel Jail, sue someone else.

    Hell, my telling you about the fair use doctrine might even be illegal under the recent wave of legislation.

    --
  • > A particularly interesting piece is an off-the-cuff comment at the end of the article which says that free licenses are generally held to be revokable.

    IANAL, but here [weblocator.com] is a page that gives the purported definition of "consideration" in Minnesota (emphasis mine):
    Consideration is a legal concept which describes something of value that is given in exchange for a performance or a promise to perform. The presence of consideration distinguishes contracts from gifts.
    Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not look at the adequacy of consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.


    I would think that a promise to provide the code along with any derived software you distribute meets the definition of "a promise to do something there is no legal obligation to do".

    Thank you, LWN [lwn.net], for the link. (LWN also mentions the program's author's claim that the program never was under the GPL anyway, though someone posted a purported quote here a few days back giving a one-line claim of GPLhood for the code.)

    --
  • > f the license is evidenced by a written instrument

    In other words, all that COTS software that you bought off the shelf at CompUSA and are currently running legally, can have its licenses revoked if the original maker sells it to someone else, since you don't have a written instrument for any of it?

    Also, what's the whether recorded or not bit referring to?

    --
  • > Generally speaking, for any contract to be enforcable there needs to be a consideration.

    So, if I donate computers and associated software to universities with no strings attached, the licenses are not valid, but if I attach strings, the licenses are valid?

    That may be the way the law works, but it sure isn't the way it ought to work.

    --
  • > What if the GPL said something like...

    Or cut to the chase: This license costs you a 1$ donation to the EFF.

    Then your investment will be spent protecting itself!

    --
  • > What am I missing?

    You're missing the fact that everyone knows that the laws are not fair, nor even consistent, because the actual underlying principle, regardless of what seems reasonable, is that the big companies are "right" in whatever they claim, until enough people raise an outcry over it.

    The best hope for the GPL is that enough "legitimate businesses" use GPL'd products now that their outcries might actually be heard by the US courts and Congress.

    The interesting -- and scary -- thing is that the big companies have gotten tired of traditional copyright law and started writing their own (DMCA, UCITA) for rubber-stamping by legislative bodies. From here on out, it just gets worse, not better.

    It would be great to mobilize the masses, but there is almost nil chance of making them understand the impact this year's court cases will have on life in the 21st Century.

    --
  • To whatever extent the law allows, the GPL will follow the OSS tradition of patching leaks and moving ahead. If the courts are unkind to GPL 2.1, we'll merely see a GPL 3.0.

    Worst case (it seems) is that we'll have to start providing "written instruments" with each license. Even this may not be as bad as it seems, since much business is already done with legally binding signatures that are generated by machine. (E.g., the signatures on the gazillions of checks issued by big companies every week.) It should be possible to set up a web page for your GPL'd product, where people who want a license just click to get their written instrument. And it will only need to be done once, since whoever sets up the first one will GPL the CGI code for the rest of use to use.

    More likely (IMO) is that the courts will not do anything that proves to be a blanket invalidation of "click wrap" licenses. In such a case the FSF will write a click-wrap function that GPL developers could link with their code, and all will be well unless The Man wants to shoot himself in the foot by challenging clickwrapping.

    Or until the next law is passed, adding yet another artificial hurdle between "legitimate" businesses like Mattel and people who don't make big enough political contributions, like OSS developers.

    --
  • The last one is wrong. You can't assume that merely having a lawn is an invitation for someone to mow it. If someone does mow it, you're under no obligation to them, as long as you didn't indicate your desire to have it mowed. If you sat and watched them do it, that's irrelevant. But, on a related note, you don't have to even know about it, if you for instance posted a sign asking for it to be done, someone could do it and bill you, without you ever seeing them.

    There are very few contracts that the law required must be written, putting a contract in writing is just for ongoing contracts where a difference of opinion in a small wording issue could be costly. What the law requires is that both parties be aware of the contract, even the implicit candy-bar waving, and not coerced, etc.

    If someone sends you something in the mail, with a bill, and you didn't ask for this, you're free to keep the something and ignore the bill. The only time this isn't true is when the something is free, like an AOL disk, but the bill is for a potential service you could sign up for, with the free product they sent.

  • I think you just said that wrong, because there's an obvious error.

    Contracts can be valid without signatures, any time you purchase something in a store, you're entering into an implicit contract (with all the force of a signed paper contract) with the store.

    What a contract requires is that both parties be aware of it. I can enter into an unspoken implicit contract for you by waving a five dollar bill while reaching for something you own, if you give me the thing and take the money, it's legally sold. If I just took the item without your knowledge and left money, even way more money than the item was worth, it wouldn't be a valid contract, I'd have stolen the item.

    But, the GPL isn't a contract, the GPL is a license, which offers a contract, basically.

    I can download GPLed software and use it in *any* way I want, as long as it doesn't conflict with copyright law. The GPL has no force yet. As soon as I want to break the inherent copyright protections, by distributing it, or modifying and distributing it for instance, then the GPL comes in, because it allows that, *if* you agree to certain terms. You signal you acceptance of this offer by using those extra rights granted. If you don't agree, you aren't given any extra rights.

    The GPL could include any clause they wish, making you compose a sonnet in honor of RMS perhaps, if it was so written, it doesn't have to relate only to the specific piece of software. This is how it can not only dictate what you do with this piece of software, but what you do with any derivative software. By agreeing to the GPL for one package, you agree to release your later modifications under the GPL. Similar to walking off a car lot with a new car, and the obligation of paying for it later. (Except that the car dealership would probably want to see some ID... :)

    There are a bunch of other things which are required to make a contract valid, but most aren't relevant here. Basically the idea is that both people are capable of agreeing, it's not a criminal action, there's no coercion, etc.
  • These are two scenarios. If you assign the copyright you can't revoke it. They own it. You also can't change the licence on subsequent versions, because you're constrained by the GPL.

    If you don't assign the copyright, but release under the GPL, that version remains under the GPL forever. However, you may change the licencing for future versions at your whim.

  • Well, that's the whole point of assigning copyright of your code to the FSF. You can be pretty certain they're not selling Emacs to anyone.
  • These are the lines the previous poster was referring to:

    Eugene Volokh, a law professor at UCLA, said that Mattel might be able to argue that the GPL is invalid because users don't pay for the free software.

    "Nonexclusive licenses given for free are generally revocable, even if they purport to be irrevocable," Volokh said. "Even if the GPL license in cphack is treated as signed and is covered by 205(e), it might still be revocable by Mattel as the new owners of the cphack copyright."

    this is a big issue, I mean, if this is the truth then what is the point of doing the usual 'sign the papers to the EFF' thing ? Any day <insert name of evil corporation here> could buy the rights, for example, to a crucial piece of Emacs, and then effectively preventing further distribution until somebody untangles the mess.

    And what about the Linux kernel itself ?

    this sucks.

  • No, the author said he didn't write cphack, he wrote two other programs which he didn't assign to the FSF.
  • Certainly, we should put the GPL through its paces, sooner rather than later. The sooner we discover whether it needs fixing, and fix it, the more we reduce exposure to risk for Open Source.

    Because the GPL is so radical, having direct supporting case law behind it will give a warm glow to the legal arm of the oncoming corporate contributors.
  • On the other hand, someone would be free to reverse engineer CPhack

    Well there isn't a lot to reverse engineer since the source is out there. Somebody would have to create a whole new program based solely on the essay, and then correctly license it under the GPL (ideally even transferring ownership to the FSF). That is, if you actually want this to be the test-case for the GPL.
  • It seems to me that the cphack package had a dual license. The portion written by Skala is not under the GPL. In fact, it has no license at all. This is equivalent to having an all rights reserved clause. On the other hand, the portion written by Jansson, which is clearly separated in its own directory, was released under the GPL.

    Moreover, the news seem to refer to Skala handing down his rights to Mattel, but they do not talk about Jansson. It could therefore be inferred that it is still legal to distribute Jansson's work alone in its own package, which could be called something like cphack-jansson.

    I do not know whether cphack-jansson would be useful or not by itself, but it could be used as the foundation for an overhauled totally legal package.

  • I think what this is comming down to is the geeks need an international legal/political organization.

    Kind'a like the EFF but a lot larger.


    I agree completely, and I fully support the EFF, but one of the biggest problems with the EFF making a real difference is the fact that they are a charity as far as the IRS is concerned, which greatly restricts what they can do politically (though "lobbying" is apparently allowed). This is why organizations such as the ACLU and (shudder) the NRA don't allow you to deduct donations. This frees them to do whatever they want politically.

    --GnrcMan--
  • This sounds like an extension of contract law, where contracts can't simply be one-sided -- each party has to give the other party something.

    Wait a sec. IAcertainlyNAL, but when you are the liscensee of a GPL'ed program you most certainly do give the liscensor something: you agree not to use their code in any proprietary programs. That can be quite a large restriction--certainly worth more than giving a dollar as you suggest--without taking away your rights to use the software as you wish for your own personal use--which the forced bug-reporting plan someone else suggested would do.

    The BSD liscense might be on shakier grounds here; all it does is revoke any implied warranties. But I think the GPL is legally ok.

    (I'm sure I don't have to point out that this is a stupid clause in contract law anyways, whether it happens to impact the particular free liscenses we have around today or not. The idea of course is just to make sure that we're not making unfair deals to hide one person's taking advantage of another and calling them "contracts". Well, considering that you can completely circumvent the spirit of the clause by paying $1, and yet it just might apply to some free software liscenses, in which all parties actually *do* understand what's going on, and no one's taking advantage of anyone or hiding anything...yet another case where we find contract/IP law is completely out of sync with actual human interactions.)
  • here's CNN's latest <a href="http://cnn.com/2000/TECH/computing/03/29/cyb erpatrol.order/"> article</a>.
  • Florida the eleventh province? You don't want it. Canada's health care costs are burdensome already, and I don't think the infusion of twelve million geriatrics will help it any.

    I will give you that Detroit can be, ehrm, rough (I'm a 'local') but it is hardly full of gun-wielding drug-fiend rapists! Really, the only place that fits your description is the district!! I think our perpensity for calling you the 51st comes from the fact that of any country on earth, you are the most like us. As much as you like to pretend you're not, it's the truth. Example, redneck bars. I can walk into any redneck bar in Canada and, with the exception of 'Budweiser' signs being replaced by 'Labatts', and recieving $3.25 in change from a $4 drink I bought with a five, I would find it indistinguishable. The people are pretty homogeneous. You have the sports fans talking shit about how the Wings/Clippers/Leafs bite, the barflies, the clumps of hourly bitching about the boss, and the bartender that sneers whan you want Guinness or Stoli neat.
  • Please take a look at my userinfo. I've done such a thing and released it on Slashdot.
  • I completely agree. Mattel won, not by obtaining the rights to cphack, but by diverting attention away from the fact that Cyber Patrol is flawed.

    If, as it has been reported, that CP has a 60-70% error rate, then why hasn't the ACLU started a class action suit on behalf of those sites being maligned by CP? The ACLU would have a better case arguing the restraint of free speech, and possibe commercial trade restraint when CP is used.

    And if you're into boycotting, why not attempt to make CP obsolete? Try putting a keyword on your home page of "XXX" or "sucks". Let's all try to get Cyber Patrol up to a full 100% error rate.

  • I don't agree with the reasoning that breaking something open is justified if it is easy to do so. If people are going to reverse engineer things, it needs to be done because they believe the software is infringing on someone's rights.

    If there is one truth in cryptography, it is that people LOVE to break cryptography. Cryptography not protected by patent can be reverse engineered. Reverse engineering is ABSOLUTELY not forbidden on things only protected by copyright. Even DMCA does not forbid reverse engineering in general.

    So we are left with - bad crypto program made to censor the web has crypto broken and poor censoring exposed. And made public domain. There is really no way to undo what has been done.

  • Short answer, yes.

    There are 12 categories the administrator can toggle on and off. There are 2 categories which cannot be disabled. Any site blocked in the latter categories are always blocked. In earlier versions peacefire was blocked for all 12 - "Violence / Profanity, Partial Nudity, Full Nudity, Sexual Acts / Text, Gross Depictions / Text, Intolerance, Satanic or Cult, Drugs / Drug Culture, Militant / Extremist, Sex Education, Questionable / Illegal & Gambling, Alcohol & Tobacco" however it was apparently not on one of the reserved lists, so it would be possible to access it by turning off all administrator changeable settings - but it would not be accessible using the settings any user is actually going to use - if a parent (or other administrator) sets the program to block any of the categories it is listed under (and who would buy the thing if they didn't want to block at least one of those?) then peacefire would be blocked.

    I have heard (but cannot confirm for sure at this point) that after this latest brouha they have finally been added to the reserved (not toggleable) list as well.

    The reserved list certainly contains some strange choices. http://133.205.62.133/~coga/ [133.205.62.133] for instance, and http://202.26.1.170/~t2m-n/ [202.26.1.170] don't seem to have any objectionable material I can see.

    The whole logic of having a "reserved" list is questionable, what exactly is this software supposed to block outside of the 12 user selectable settings? And why do political sites wind up listed under many if not all of those 12 categories, when most are clearly innappropiate? Sexual acts, violence, nudity, gambling satanism and drugs on peacefire? [peacefire.org]

    Of course, if you had read the essay [usc.edu] you would have known this already. Better grab it quick, before the Uni turns yellow and orders the prof to take it down.

  • Very good point.

    Here's the section of the law that Wired says might invalidate the licenses already granted:

    USC 17 205 E

    (e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License. - A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent, and if -

    • (1) the license was taken before execution of the transfer; or
    • (2) the license was taken in good faith before recordation of the transfer and without notice of it.

    IANAL - #include stddisclaimer.h etc. BUT

    I can read. This says that IF the license was in writing with a signature from the original copyright holder on it then it would stand. It does not say that because there is no signature it does not hold - it doesn't say anything one way or the other about the typical software license which no one signs. I couldn't find anywhere else in the code that addresses that issue.

    IF this is taken by the court to invalidate the pre-existing licenses in this case the precedent would also invalidate 99% of commercial software licenses along with it, meaning for instance that Symantec could demand everyone who has bought Quarterdeck software in the past to quit using it and surrender all copies, since they bought Quarterdeck. Not sure why they would want to, but they could, if that is the precedent that's set. Very strange.

    What strikes me as truly absurd about such an outcome is that (someone correct me if I am wrong here) I believe it is firmly established that the original copyright owner that granted the license cannot revoke it (except as allowed for by the particular license) yet if this is the ruling they would suddenly be able to sidestep the license entirely by selling it to someone else and having them revoke the license? Very strange.

  • Yes it is "kind of like" clean room reverse
    engineering. However...I have trouble calling
    reading source code and describing how it
    works "reverse engineering".

    However...I supose it is. I would think a "friend"
    would work fine. Afterall...the whole point of
    the "clean room" is that you can argue that since
    you NEVER saw the original code...you couldn't
    have possibly copied the original code...ergo,
    you can't violate its copyright.

    The reason I say "have him write a 'review'"
    instead of calling it "reverse engineering" is
    that by possessing the source, he can still
    do anything that is covered under "fair use" and
    that includes writting reviews ...ie its
    protected. (he could even include code snippits
    but that would defeat the purpose)

    And of course I am trying, in this explained
    procedure, to skirt around original copyright
    law (clean room) and any anti-reverse engineering
    laws (which are poping up lately)

    Whether it would work or not...who knows?

    hmmm how big is the source? If its not too big
    I would bet a good quality review could be written
    in a few hours.

    -Steve
  • However...now I must ask...what constitutes
    "Payment"?

    This ties in very well with the RMS interview
    a few days ago when he said that they (they being
    corperations) "dislike freedom, they only
    recognize the freedom to do things that are
    profitable".

    However...what if I consider the good feeling
    I get from thinking that someone else is using
    my program as "payment"? Really...thats all
    the payment that I need.
  • The question is did Mattel get the rights to the code after the settlement, or did the court rule Mattel has always had rights to the code. If they simply recieved the rights to the code at the time of settlement then their screwed because it was already GPLed. If they always had the rights to the code, and the case just confirmed it, then the code was GPLed illegally. The license is invalid and Mattel owns all the code, period.

  • OK. I am beginning to see what you mean. Now I see that it is not the issue here.

    The Alice-Bob agreement is a contract only if there is consideration. But what is consideration? Is money the only acceptable form of consideration?

    The agreement gives Alice, the skeptic, the high ground. Bob in agreeing to take the alien ship away is saying that Alice is vindicated. Until the alien ship actually crashed, and the consideration - Alice's vinidication - is forfeit. Bob is then entitled to cash in on the forfeit by claiming the ship (since he maintained its existence) for his vindication. It sounds inadequate, but one only needs to show consideration, as your same link shows, not adequency! Consideration (in the form of vindication) goes both ways in this case, right?

    This entire idea of consideration doesn't make sense from the betting point of view. Lawyers frequently offer this option: "I'll fight your case for no charge. But if you win, I get 50 percent of damages." Sounds like a good deal right? But where is the consideration to the lawyer when the case is lost? This contract is void! Yet people are doing this all the time, in the USA.

    My conclusion is that consideration is an essential point here. But one has to be flexible about what form consideration takes!

  • Well, the GPL is phrased as an "if ... then" statement. If you modify the code, and choose to distribute it, then you must include the code to whoever you distribute to.

    This means that there is a violation only when the if clause is satisfied and the then clause not. In the other cases, you have entered into a licence which does not restrict your freedom in any way. Quid Pro Quo is in effect in all cases. If you distrbute and pass the changes back, the original provider gets the changes. Something for something else. If you don't make modifications, or don't distribute, nothing is taken, nothing given.

    This makes it different from the alien case you are making an analogy to. Bob should probably have said, "If an alien lands, I'll haul the ship away for you, and cleanup the lawn for you too." When Alice assents to this agreement, she is in effect agreeing to let Bob haul the ship away. How she assents to this agreement (by accepting money or otherwise) is immaterial. The point is that there should be some sign of assent. It seems that "consideration" should be part of the contract, and not confused with the issue of whether the contract is entered into at all.

    But IANAL. I maybe naive and just plain wrong.

  • Might be interesting for 2 versions to come out - one GPL, and one explicitly public domain. Perhaps post the sources without comment, to give them a little time to diffuse.

    Note that "as long as Mattel has not notified him of the license change" might be taken to mean "so long as he has not read of the assignment of rights to cphack to Mattel. Those programmers working on new versions had best not be doing any viewing/hearing of news.

  • First let me say IANAL...but in my defense, I have to point out that I made that statement based on one of the copyright lawyers' quotes in the article.

    Here's the situation as I understand it:

    • Mattel may be able to rescind the GPL licensing applied to cphack because copyright law requires a "signed instrument" to transfer ownership (to, say, the FSF) in order for that license to be irrevocable, regardless what the text of the license says.
    • Unfortunately for Mattel, in order to rescind the licenses already granted (not ownership rights but licenses), they need to contact the current license holders to notify them of the change. In the case of cphack, this means that the GPL will still apply to it until Mattel gets the word out to all the licensees (i.e. everyone whose downloaded it) that the GPL no longer applies. During that window, one could arguably rewrite cphack and redistribute the new version even after the original cphack license is rescinded, because it was derived from then-GPLed software.

    Again, IANAL; this is just my reading of the article.

    --WhiskeyJack

  • It seems to me that we are fighting large multi-national companies on their turf. Even worse it seems that national borders aren't very effective at stoping litigation.

    We need to enlist the media more effectively. Instead of releasing a program to decrypt the blocked list sites, release the blocked list to the New York Times or Washington Post. Those guys will defend their first amendment rights.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • Does the expectation of improved code from others constitute sufficient consideration?

    I don't think so because it's an expectation and not an enforcable promise.

    Now that you mention it, the "Open Source" licenses that require code changes to be given back to the original author might pass the consideration hurdle. There I've given a promise to send back future code changes in exchange for seeing the code now and the right to redistribute derivative works. I realize that these types of licenses are deprecated, but they may actually be more enforcable.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • According to this, maybe the GPL is not a contract, but a gift. Does that make any difference? Aren't gifts protected by law too?

    Some are. But the gift of a promise is not generally enforcable. If I freely promise to give you my car in 12 months in exchange for no consideration (i.e. a gift and not a contract), you can't take me to court to make me life up to the promise. Similarly, if I promise never to revoke a gift of free software and I later change my mind, you can't sue me to live up to my promise if that promise is a gift and not a contract.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • Now, I think that it is the key issue. As a user of GPLed software, I want to be able to rely on the promise that the right to use and redistribute it will not be revoked at a future date. But if the GPL is not a contract because of lack of consideration, I can't enforce that promise in court.

    Consideration can take any number of forms. The lawyer's contingency fee is consideration as is the promise of an insurer to pay benefits if an insured event occurs. The presence of a contingency dosn't make the promise devoid of value even if the chance of it being fufilled is remote. The alien example was concocted because I wanted some kind of promise which could plausably be given. The remoteness of the event is not the issue.

    The question still remains what form does the consideration for the author of GPLed software take. Good feelings are probably too intangible to count. I think that the old BSD Advertising clause probably would count as consideration as would the requirement in some licenses that modifications be sent back to the author. But I'm failing to find consideration in the GPL.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I think that the commentator is confusing assignment of software to the FSF with the GPL license. Yes, assigning a copyright to the FSF or to any other party legally requires a signed agreement. Granting a GPL license dosn't. I think that the article is inaccurate and misleading on this point.
    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I think that it may very well have to do with consideration. It's clear that the licensee gets rights from the GPL. The question is does the licensee give any consideration in exchange for those rights.

    I've done a web search for legal discussions of consideration and the GPL and nothing pertinant came up.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • Let's say Bob does put it in the form of an if ... then ... statement and Alice clearly assents in writing. There still isn't an enforcable contract because there is no consideration.

    Alice can't force Bob to haul the ship away if he's reluctant to do so and Bob can't force Alice to turn the wreck (or the monetary value of the wreck) over to him if she disposes of it otherwise.

    Consideration has to be an element of any contract. Here's a link [weblocator.com] which discusses consideration in Minnesota law, but it is general enough to apply to other states. I learned from this page that consideration distinguishes contracts from gifts. Gifts or promises to make a gift, I believe, are not enforcable. I also learned that each party to a contract needs to give some consideration.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • Well everyone that got a copy from the original source got in before the transfer of ownership, so those licenses are good. Since the GPL grants licenses from a licensee who has the program to whoever he/she tranfers it to, those people should be licensed, and so on.

    Also, as far as a license being revocable because we don't pay for it. Does this have to do with contract law and "consideration" (legal term for compensation) being required? Well by accepting the license we gain the right to distribute the software, which could legally be considered consideration. Also, the No Electronic Theft Act redefined "financial gain" to include receipt of copyrighted works. Wouldn't it be ironic if we could use that in our favor?

    These are just some ideas. A real lawyer needs to look at this.

  • My last example with someone mowing the lawn is correct. You have approved by your action/inaction. Of course, there would be the dispute of price. There is also the concept of unjust enrichment.

    What requires a contract to be in writing is known as the statute of frauds. It is different in most states, but generally applies to real estate, large amounts of money, agreements to pay debts of others, and contracts that take more than a year to complete.

    Receiving something in the mail and keeping it is a matter of statute. It is different from the guy who mows your lawn, or details your car while you watch.

  • The paperboy who delivers your paper (or at least when I was one) did not have a signed contract.

    Phone orders are not signed.

    When you buy food at a store, gas at a gas station, you usually do not sign a contract.

    If a guy mows your lawn, even if you don't ask, and you watch, you still owe him the money (presuming you did not tell him to stop). That is a contract.

    Some contracts are to be in writing though.

  • The original article was talking about signing by hand and that might or might now make the CPHack code GPL.

  • Having your name out in public can be a consideration.

    If CP was hacked and they said, you can look at the code for $$$, do you think anyone would hear of them?

  • Didn't I read that there was a slight chance that the cphack source could turn out to be illegal and therefore could not be placed under GPL. Since the object of this exercise is to produce a completely legally watertight case a better scheme might be:

    - Someone who understands crypto coding (unfortunately that's not me) reads the cphack essay but specifically not the source.

    - The then use the knowledge gained to write a completely new cphack which (as suggested by DG) just displays the block list (and which is obviously called something else).

    Now for the clever bit :-)

    - We choose a country where we believe that the laws are most in our favour and justice is reasonably inexpensive (suggestions?). We then locate a volunteer in that country who (a) believes in the cause and (b) is preferably a minor.

    - Said volunteer then claims to have written the code, does all GPL related legal hoop jumping and release it to an expectant world.

    - Then we sit back and see what those bastards at Mattel do about it.

    Obviously, this needs a bit of covert organising in order to work properly (e.g. maximum use of telephone conversations and floppy discs in jiffy bags rather than possibly traceable email).

    Perhaps the above is a council of perfection, but if we could achieve at least the first half we would be getting somewhere.

    Yes, I have done something positive to help the cause rather than just sitting and complaining. I paid my money to join EFF. Have you?

  • http://slashdot.org/article.pl?sid=00/03/28/181320 4&mode=nested

    Here you have it, and the explain is at the bottom.
  • Is it possible to deselect every category of censorship in CyberPtrol? And if it is are the different anticensorship sites (peacefire,...) still censored?

    I ask it because while I think that it is not possible, and if it is possible they probably are accessible, it would be quite telling if they still weren't accessible, no?

  • Here's the relevant portion:
    • (e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License. - A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent, and if -
      • (1) the license was taken before execution of the transfer; or
      • (2) the license was taken in good faith before recordation of
        the transfer and without notice of it.

    It seems to me that even if the relevant portion is arcane and obscure, it's still the law.

    --

  • It's true that fighting multinational corporations on their own turf, in the courtroom, is an uphill battle. On the other hand, it may be the best way to go. An international legal/political organization would have to fight every step of the way for every single implementation of change. On the other hand, if a test case can be won (a "perfect" test case, the kind most lobbies wait for--ie one where the GPL was perfectly distributed, etc) and won at a high enough level, massive changes occur--WITH the substantial backing (at least publicly) of the US government, which is arguably the best group to massively rewrite copyright law.

    You don't even need to form a group or file for a test case to fight on corporation turf. Write your government representatives every time something like this comes up. Be polite, remind them that you're voting next election, and keep sending mail. I've worked for pol offices, and if there's one thing that gets through, it's a big box of letters and a ton of phone calls coming in every time a new bill comes up. Granted, I like the idea of a massive worldwide geek political/legal foundation...but in the meantime, it's not like we're all powerless.

    Sidenote. If the ACLU was working on the case, it would've had to have been with the cooperation of the authors. They can't just jump in and take things over. Even if neither of the guys was a US citizen, it's in US courts, with a US company, so the ACLU's got an interest in it...and they bring free lawyers with 'em.

  • by Kris_J ( 10111 ) on Wednesday March 29, 2000 @08:44PM (#1162791) Homepage Journal
    Why isn't software just a normal product? If I wander into a store and buy a clock (I just did), I now have a clock. I'm not forced to return it if I choose to make it run backwards in a breach of some licence agreement. I can strip it and use the parts in other stuff. I can crush it under my car if I want. I have given someone some money and they have given my a product. End of story. Why does software need all this licence crap at all? Why should I feel like I'm renting a service when I buy a peice of software?

    I think there's a place in the market for software totally devoid of licences. Provide decent manuals and support for people that actually buy it, but otherwise just sell a damn product.

    There, I feel better now.

  • by jms ( 11418 ) on Wednesday March 29, 2000 @01:02PM (#1162792)
    The licensee of a GPL program receives consideration in the form of a license to use and improve the software.

    The author of a GPL program receives consideration in the form of a promise by the licensee to disclose any improvements or modifications to the software in source code form, when the improved software is distributed in any form.

    Such disclosements of valuable intellectual property would not be required in the absence of the GPL.

    As anyone who's ever read an NDA knows, program source code, as developed by a company, is generally considered to be valuable goods, and an agreement to reveal what would otherwise be considered trade secrets should count as consideration.

  • by sbuckhopper ( 12316 ) on Wednesday March 29, 2000 @06:50AM (#1162793) Homepage Journal
    I don't really like the statement:

    The law requires "a written instrument signed by the owner of the rights licensed."

    because if all this is the case, then why can people be accountable for email that they have written?

    I realize that these are in some sense disjoint subjects, but I think that there is a connection between them. if electronic means can't be used to give the rights of a program to someone, then why can email be used as evidence in court? If the courts are going to "grow up" digitally and use email in court, then they sure as hell should allow the use of granting rights and permissions over electronic means.

    I know this is somewhat off topic, but it doesn't seem like the court plays by all of the same rules. Either using an electronic means to do something is considered binding, or it isn't...make up your mind!

    okay I'm done ranting now...kill my karma.
    ---
    "Everybody knows the moon's made of cheese."
  • On his website, one of the two guys involved says the following.

    If I ever did something like this again (not to a Microsystems or Mattel product, of course, because I've agreed to leave those alone), I would probably put a note in all the files explicitly making them public domain, to prevent the kind of situation that happened here.

    If you've explicitly waived your copyrights and placed the work in the Public Domain, then there's no question of you assigning your rights to anyone, so the reassignment of rights that took place here is not an issue.

    Whilst the GPL gives an excellent defensive edge in terms of keeping proprietarists off our grass and doing an embrace and extend on our software, waiving copyright entirely seems to be the more powerful concept in terms of keeping the software free, especially if this "free licenses are revocable" quip has any truth to it. I mean think about it: any piece of software which is under the GPL or a BSD style license can potentially be changed retroactively to a non-free license. Maybe the current copyright owner can be trusted to keep it free, but what about future owners? If the copyright is owned by a company, then it can be purchased along with the company in a buy-out. The havoc that could be wreaked with this concept is unthinkable, and I'd like to believe that it's impossible, but when it comes to The Law, who the heck knows? Unthinkably daft stuff seems to be the rule rather than the exception in IPR laws at the moment.

    Public Domain may not make any guarantees about derived works being free, but if making something Public Domain won't keep the original work free, then nothing will. Here's to the Public Domiain.

    And yes, of course, this post is Public Domain (P) 2000.

  • by Spud Zeppelin ( 13403 ) on Wednesday March 29, 2000 @07:41AM (#1162795)

    ...a non-exclusive license granted without charge may be revocable even if the license states that it isn't.

    Sounds like what our friendly, neighborhood Free-as-in-Speech licenses need is a strong shot of "Not-Free-as-in-Beer": more like "Cheap-as-in-Bad-Beer"? :) Seriously, suppose that our favorite licenses contained a clause similar to the following:

    Consideration

    In return for the rights assigned hereunder, licensee agrees to remit one of the following considerations to licensor:

    1. Payment of the sum of one ($1) dollar US.
    2. Past consideration in the form of similar licensure of a previous software product written by licensee.
    3. Past consideration in the form of labor, providing software testing performed for licensor by licensee.
    4. Future consideration in the form of similar licensure of a forthcoming software product written by licensee.
    5. Future consideration in the form of labor, wherein licensee will provide software testing for licensor.
    6. Future consideration in the form of documentation, wherein licensee will make publicly available materials describing the use of the product.
    7. Future consideration in the form of publicity, wherein licensee will make public statements regarding his use of the product.

    I realize that this puts a dollar premium on "lurking" in the community -- but it also explicitly states in the license ways non-programmers can become involved... which in the long run is advantageous in-and-of-itself.



    This is my opinion and my opinion only. Incidentally, IANAL.

  • YACOGSBB against the little guy(s). (yet another case of government supporting big business).

    Let me offer an example: suppose I have a copy of the cphack source code (which I have extensively modified, but not released yet), which I accepted under terms of the GPL. Mattel has not notified me in writing that they believe they now own the rights to the original source code.

    So I assign (still under the GPL) the rights to my heavily modifed code to the FSF.

    This would appear to close the loophole mentioned in the article, but would it stop Mattel from threatening to shut down my site(s), have the justice system throw me in jail, etc. because a judge in a different state decided to issue a restraining order in such a way that I am vulnerable to the application of his ruling?

    The problem is, there's no law that protects me from Mattel's legal department. Such as a "loser pays" requirement in lawsuits deemed to be harassment.

  • by turg ( 19864 ) <turg@winstoSTRAWn.org minus berry> on Wednesday March 29, 2000 @06:50AM (#1162797) Journal
    Another interesting line from the article: "A programmer might be able to modify cphack and legally distribute the substantially altered version as long as Mattel has not notified him of the license change."

    Let's get to it, people.

    ========

  • by Lagged2Death ( 31596 ) on Wednesday March 29, 2000 @07:16AM (#1162798)
    In a lot of ways, the cphack and DeCSS cases strike me as a lot of pointless legal wrangling. Like a misused antibiotic, these cases are going to make things worse for the Mattels and MPAAs of the future, not better.

    Given the treatment the authors of cphack and DeCSS have had, the authors security cracking programs of the future would be wise to take pains to hide thier identities. And then what will Big Brother do?

    The next DeCSS could be distributed strictly by Napster/Wrapster/GNUtella/Usenet. Then there would not be any one person the Powers That Be can crucify as an example to the rest of us. There won't be a handful of mirrored sites to slap with subpeonas, there won't be a teenager to rake over the coals in the back room at the police station. The program would be everywhere, yet nowhere that's worth going after.

    I just don't see what Mattel and the MPAA hope to achieve. They will probably win all the court battles, and yet they will gain nothing.
  • by prizog ( 42097 ) <novalis-slashdot ... g ['nov' in gap]> on Wednesday March 29, 2000 @07:02AM (#1162799) Homepage
    The DMCA presents an interesting twist in this case.

    The story:
    Yesterday I was called into the Computing and Information Services dept at my school. They said that under the DMCA, in Copyright cases, they had to remove the materials immediately, as a "good faith effort" or they could be held liable. They further said that even if I was right, they would rather not fight a lawsuit. "We would rather use our money in other ways." So I took down my school mirror of the software, and put one up on Geocities (http://www.geocities.com/novalis_dt)
    OK, but consider the implications of the DMCA - you *can't* choose to fight the man, 'cause if you do, they go for your ISP. And *everyone* has someone as their ISP.

  • by kaphka ( 50736 ) <1nv7b001@sneakemail.com> on Wednesday March 29, 2000 @11:02AM (#1162800)
    This sounds like an extension of contract law, where contracts can't simply be one-sided -- each party has to give the other party something. I could pay you a dollar for GPLing your code, and you would not be able to undo that GPLing without my consent. (You could, however, undo it *with* my consent.)
    If this is true, maybe we could kill two birds with one stone in a future version of the GPL... Add a clause stating that, in return for being granted use of the software under the GPL, the licensee agrees to report any bugs that they happen to find, in the course of normal use. (The language would have to be much more precise.)

    That way, the GPL could be viewed as two-way contract -- one party provides software, the other party provides testing services. (Which would certainly be of value to the author.)

    This is all assuming that the GPL is, in fact, revocable. That still sounds kind of fishy to me.
  • by G27 Radio ( 78394 ) on Wednesday March 29, 2000 @07:16AM (#1162801)
    The whole intent of the GPL has been to make an irrevocable free license. The FSF has gone through a lot of trouble to do this. If this fails does that mean that there is no legal way to do such a thing? That would be truly sad. I mean seriously, how can you tell people that they're not allowed to release software under a free irrevocable license.

    The spirit of the GPL is that the license is irrevocable. The authors of CPHack released it under the GPL with this spirit in mind. This is the best irrevocable free license available to my knowledge and the 'irrevocable' part is exactly what makes it work. I can't see how any judge or government can justify saying that such a license is not legally available in the US.

    numb
  • by TheCarp ( 96830 ) <sjcNO@SPAMcarpanet.net> on Wednesday March 29, 2000 @07:09AM (#1162802) Homepage
    Better yet...try this...

    Get a friend. Have freind read the source code
    and write a review of it. In the review have
    him talk about all the functions and what each
    of them does and how it works in minute detail.
    (nothing in copyright law, except maybe some of
    the horrible new stuff, says you can't write
    a reviw)

    Then take his review...and use it to write
    a new software program that does exactly the
    same thing as cphack.

    oops. New program...copyright by you...
    contains no old code (you never saw the
    code itself). Written from information in
    the text of an article...where the article
    itself is perfectly legal.

    Just a thought.
  • by faedle ( 114018 ) on Wednesday March 29, 2000 @08:24AM (#1162803) Homepage Journal
    All this BS generated by idiots who haven't even downloaded the code and looked at it is really getting out of hand. For the last time, it is NOT GPL'ed.

    Don't believe me? Look at Matt's own site, http://www.islandnet.com/~mskala/ [islandnet.com]:

    I did not put any GPL notices on the portions of the package that I wrote, I did not intend my work to be GPL, and I did not lie to the plaintiffs about what rights I owned or could assign to them.

    Can we mark this entire news item as irrelevant? Can somebody in Slashdot-land research this issue a little better before perpetuating the theory that this code is GPL'ed? This will NOT be a test of the GPL. Period. Everybody needs to remove their head from the cranial-rectal position and RESEARCH WHAT THEY ARE TALKING ABOUT before posting.

    The Wired reporter is wrong, as is anybody else who's claiming that the code is GPL'ed. Even if you wanted to claim that the one piece of code that contains the words "Released under the GPL" is GPL'ed, it is doubtful that the courts would agree that the license applies: none of the terms stated in the GNU GPL have been met (no displayed copyright notice, no disclaimer of warranty, no copy of the LICENSE text file).

    IT'S NOT GPL'ED!!

  • by Anomalous Canard ( 137695 ) on Wednesday March 29, 2000 @06:47AM (#1162804)
    The very end of the story raises this thorny issue. Someone states that a non-exclusive license granted without charge may be revocable even if the license states that it isn't.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • by Anomalous Canard ( 137695 ) on Wednesday March 29, 2000 @08:12AM (#1162805)
    Generally speaking, for any contract to be enforcable there needs to be a consideration. Money is one form of consideration, but not the only one. The user of the software gets some rights, but does the grantor get anything? In the days of the old BSD Advertising-clause license, the answer is, probably yes. In the case of the GPL, I'm not so sure.

    Why is consideration important? To distinguish real contracts that have been entered into from hypothetical ones.

    Sally, a sceptic, exchanges email with Bob, a firm believer in UFOs and alien visits to this planet. Sally willingly grants that Bob can have any alien spaceships that crash land on her property. Lo and behold, an alien spacecraft, low on fuel, crashes in her backyard. Several spooky fellows come by and offer Sally $500,000 for the steaming pile of spacejunk and she jumps at the offer. Bob sues Sally under the theory that their emails constituted a contract for Sally to turn over any alien spacecraft to him. Sally's lawyer, having read Slashdot, says "Nuh huh! There's no consideration and hence no contract! Bob didn't pay Sally anything for the valuable residual rights to disabled alien spacecraft on her property." The Judge rules in favor of Sally and dismisses the case. Bob gets an anal probe by some very pissed off aliens.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • by Anomalous Canard ( 137695 ) on Wednesday March 29, 2000 @09:10AM (#1162806)
    It's not clear to me what that "generally" means.

    It means "most of the time". It means that there might be some specifics of an individual case that would made the statement untrue, but that, in the absence of some specifics, the statement is true. Generally, an arbitrary integer, n, is not prime. It could be prime if n has one of a specific set of values, but generally, integers are not prime.

    About the validity of the GPL: I don't see what's the difference between it and a shrink-wrap-type license. So the DMCA (may it rot in hell) could for once be turned in our favor, adding weight to it.

    Don't confuse the DCMA (Federal Copyright Law) with UCITA (the proposed Uniform state law that would govern shrinkwrap licenses).

    About the revokability of the GPL: if (as stated by the DMCA) the GPL (being a shrink-wrap-type license) is fully binding, and since it doesn't have a termination clause (the only termination condition covers the case when the license's terms are violated), the copyright holder can do absolutely nothing to terminate it.

    Assuming you mean UCITA and not the DCMA, the GPL is only enforcable as a contract if it meets the standard for a contract. I found this quote at this website [weblocator.com] on Minnesota contract law, but the concepts are general enough (that word again) to apply anywhere in the US.

    Consideration

    Consideration is a legal concept which describes something of value that is given in exchange for a performance or a promise to perform. The presence of consideration distinguishes contracts from gifts. Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not look at the adequacy of consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.


    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • What about the statement of "do anything you want..." in the CPHack document?

    The Mattel / MSI press release [cyberpatrol.com] states, "The company did not file the lawsuit to prevent publication of the CyberNOT filtering list". They also say, "Microsystems did not object to the essay or any of the other material posted by the defendants that was not obtained or derived by violating Microsystems' copyright.".

    Since they have said that, I am asking the company if they have a problem if I publish the essay and the CyberNot list. If they are telling the truth in the press release, then they will authorize me to publish it.

  • by DG ( 989 ) on Wednesday March 29, 2000 @06:54AM (#1162808) Homepage Journal
    Someone in the employ of the ACLU or the FSF or one of the other organizations who are willing and able to actually fight this should:

    - Take the cphack source

    - Modify it so that it's only use is to display the CyberPatrol block list (to avoid accusations that this is a tool to allow children to access porn)

    - Release it under the GPL **PROPERLY**, with the COPYING file, the copyright signed over to the FSF, and the other required hoop-jumping

    And then stand and deliver when Mattel comes knocking.

    The original CPhack authors have done their bit. Now it's the turn of the Big Boys.

  • by g1dlc ( 15306 ) on Wednesday March 29, 2000 @06:48AM (#1162809) Homepage
    Mattel could be doing us all a favor by pursuing this. We've been waiting for a GPL test case quite a while. This one would even test the 17 U.S.C. 205e issue. Maybe we should consider funding Mattel's legal beagles? :-)
  • by (void*) ( 113680 ) on Wednesday March 29, 2000 @07:16AM (#1162810)
    Eugene Volokh, a law professor at UCLA, said that Mattel might be able to argue that the GPL is invalid because users don't pay for the free software.
    "Nonexclusive licenses given for free are generally revocable, even if they purport to be irrevocable," Volokh said. "Even if the GPL license in cphack is treated as signed and is covered by 205(e), it might still be revocable by Mattel as the new owners of the cphack copyright."
    "It is unfortunately not quite as solid a case for the good guys as the GNU license theory would have at first led us to believe," he said.
    I am glad those cphack authors did such a poor job of assigning their rights to the GPL. If this is true, then we should stress just how botchy their job of assigning this copyright to the FSF is. Thinking of the huge volume of fine free software, I just can't visualize it as going away just like that. If it is, I would like to support RMS in his fight to keep the GPLed software free.

    And now for the rant: The logic of this line of argument is detestable, really. Why indeed should contracts be drafted around the concept of money. Whatever happened to quid pro quo? The GPL says: "Use this software as you like, change it as you like. But let's share that change." This is not a commercial transaction. The last time I heard, contracts/licenses covering non-monetary forms of compensation are legal and enforceable. Many free software programmers are NOT in it for the money.

  • by Kagato ( 116051 ) on Wednesday March 29, 2000 @06:53AM (#1162811)
    This Mattel Flap and the DeCSS flap have my gears moving on why the geek elite are getting their butts kicked.

    It seems to me that we are fighting large multi-national companies on their turf. Even worse it seems that national borders aren't very effective at stoping litigation.

    I think this all steams from the fact that we are American centric on this issue. I wouldn't be suprised if the reason guys signed their soul to Mattel was because the ACLU didn't communicate with them.

    More so, should the ACLU be in charge of this case? The A stands for American. Sure one of the guys was from Canada and that's pretty much the 51st state, but the other guy?

    I think what this is comming down to is the geeks need an international legal/political organization.

    Kind'a like the EFF but a lot larger.
  • by www.sorehands.com ( 142825 ) on Wednesday March 29, 2000 @07:03AM (#1162812) Homepage
    If there is a requirement to be signed by hand, what about the validity of the click wrap license agreements?

    Since you accept it by clicking and not signing...

    Damn, all these evil thoughts keep popping up.

  • by Anonymous Coward on Wednesday March 29, 2000 @06:54AM (#1162813)

    This whole GPL thing is a tempest in a teapot. See what one of the authors has to say [islandnet.com].

  • by Threed ( 886 ) <nowhere.atall@com> on Wednesday March 29, 2000 @07:27AM (#1162814)
    whether CPHack is GPL'd, owned in whole by Mattel, or whatever, because we don't need CPHack anymore.

    The essay was written. The list was exposed. It is (and has always been) well known that CP is a piece of crap that doesn't do what it's supposed to and does other stuff behind your back if you let it.

    Now, if they want to use this as a test case for the GPL, they are only going to wind up hurting the FSF and the Open Source community. The GPL had more teeth when companies took it at face value. To test it is to weaken it.

    --Threed
    Browsing at +2, or else on my Cell Phone. I see no trolls.
  • by FFFish ( 7567 ) on Wednesday March 29, 2000 @10:53AM (#1162815) Homepage
    Long live the Internet.

    Seriously, the "Internet" as I remember it from over a decade ago, was a small collection of a few thousands of interconnected Universities sharing EMail, a very small Usenet (in those days, one could actually read all of alt.sex... and enjoy actual conversations and discussions), and FTP.

    It was mainly a closed system. No riff-raff public allowed in. Certainly no advertising or commercial business allowed. It was a community.

    And then, all at about the same time, the Internet became open and Webified.

    And that's when it died. When it became affordable, when Joe Moron could easily access it, when it became allowable to conduct commercial business...

    One of the drawbacks to our computer age is a near-complete loss of history.

    Almost everyone--and I mean that most literally: certainly there aren't more than a few hundred thousand people who date back to ARPANet days--has absolutely no clue why and how the Internet came to be.

    All they are aware of is that it has pretty graphics, decent search engines, and you can buy porn from home.

    They don't know that there are philosophical and moral battles being played out. They don't know about nor understand the EToy(s) issue; they don't blame the MPAA for wanting to stop theft of artist's songs; they want the government to put a stop to kiddypr0n; they've never known EMail without spam and don't even realize that it could be any different.

    They watch network television, for cripes sake!

    Face it: the lowest common denominator now has access to the Internet, and he actively *wants* the government to keep him safe and secure.

    And those proles outnumber the geeks and old-timers ten thousand to one.

    They demand a regulated net. They accept a commercially-driven net. They are afraid of freedom of expression.

    They are afraid to step out of the tiny box they live their lives in and realize that when everyone pulls together, we can have a pretty damned special and hopeful world.

    The Internet is dead.
    Long live the Internet.



    --
  • by griffjon ( 14945 ) <GriffJon&gmail,com> on Wednesday March 29, 2000 @08:09AM (#1162816) Homepage Journal
    While the implications for GPL in general and reverse engineering, and all of that are Highly Important, there seems to be a general silence about the, as I see it, FAR more dire consequences here.

    Not only is Mattel going after the program, it's also going after the ESSAY and the BLACKLIST. Wait a minute here! Is this ruling saying that while the government can't censor, private companies can censor people--even non-employees??? This is especially frightful considering the CyberPatrol practice of blacklisting sites critical of CyberPatrol even if the user is only filtering, say, porn or whatnot.
  • by eddy ( 18759 ) on Wednesday March 29, 2000 @02:28PM (#1162817) Homepage Journal

    I thought I'd write a piece about this when it was all over, but now I feel the need to speak up a little. Let's see if I can clarify some things for you.

    I've settled with Mattel, through my attorney.

    Why we wanted to settle? Well, let's see... As far as I'm concerned, we did what we set out to do; to show that the hash used in CP was not secure, and that the banlist contains lot's of questionable items. Implicitly, we suggest they change to a real secure hash, and take the review-process of suggestions for bans a little bit more seriously. We included the software as proof of concept. Now we move on to other things.

    About the licence, copyright and what not. First we must keep our perspective on things. I honestly didn't believe for a second that Mattel would go after us in the courts. At the most I thought that maybe they would contact us in email, requesting we withdraw the files, though I held for more probable that they'd simply update the encryption, making our software void and that'd be it. With hindsight, I guess I'm just really really naivë. I certainly never ment for this to hit the courts (as some seem to be suggesting). This explains in some way why things are so 'murky' as far as licenses go. I can speak only for myself, but my take was that our work would be free for anyone to do whatever they wanted with (I've gotten email saying it was used as a teaching aid, a perfect example of good use, IMHO). So, I wanted something in the essay about this, so I added the part about anyone being allowed to mirror it and so forth. This was a late addition and I informed Matthew about it. I did however make one big mistake, and that is that "GPL" string. You see, when I finished 'cphack' (which got it's name not because it's can be used to 'hack past' CP, but because it is a quick hack, basically written by me top down. I know it's a piece of crap as far as 'engineering' goes, but that is often the case with hacks, no?), anyway, I had finished the software and thought'd I'd write something in the header expressing my intentions as to it's use, distribution and so forth, and so I entered simply 'Released under the GPL'. Now, I made a mental note about speaking to Matthew, that maybe we should release the whole thing under the GPL. For one thing, part of the code was simply my translation of his c-code, so I had to ask him about it, right? Guess what? I forgot. It really didn't hit me until it made conversation on Slashdot, and now I'm not sure what, if anything, I can do about it. All I ever wanted was for people to use the (admittedly crappy) software in any way they saw fit, never having to wonder (or ask) if it was okay by me. As far as I'm concerned, the string weren't meant to be in the distribution, and Mattel got my rights to it.

    Now for the titles I've gotten. I have never called myself a hacker. The press have. My sincere apologies to the real hackers out there. I do share most of the mentality, as described in the first third of Levy's _Hackers: Heroes of the Computer Revolution_ and in the Jargon File, but I am not yet one myself. Some have called my a student. I am not a student (well, not officially, I'm on a never ending quest for knowledge, but I don't think that counts). Someone even referred to me -- or me and Matthew both -- as a cryptanalysts! I am not a cryptanalyst, but thanks for your faith in my abilities. If for some reason you have to call me something more than simply 'Eddy', you can use the term 'programmer'.

    I am that, at least.

  • by Kaa ( 21510 ) on Wednesday March 29, 2000 @06:47AM (#1162818) Homepage
    A particularly interesting piece is an off-the-cuff comment at the end of the article which says that free licenses are generally held to be revokable.

    If true, this has huge consequences for the GPL and other open source licenses. I am sure FSF tried its best to make the license non-revokable, but it's up to courts to decide whether this effort succeeded. If there were to be a ruling that the copyright holder can revoke an open-source license granted previously -- oh, boy!

    Kaa
  • by blakestah ( 91866 ) <blakestah@gmail.com> on Wednesday March 29, 2000 @06:52AM (#1162819) Homepage
    The cp4hack was not GPLd, as anyone who took a look at the original source could easily see. They basically released it under a public domain type of license. From the original release

    "The source is included, and you can do whatever you want with it"

    Given that, ANYONE can modify and claim copyright on the software. I see no legal way that Mattel could use copyright law to revoke anyone's use of this software for any reason. They really need the judge to rule that the software is illegal for some reason and thus give a justification for someone to pull it from a web site. As it stands now, Mattel has no leg to stand on.

    Let's face it, they wrote a pathetically weak program, and they deserved to have it reverse engineered.

  • However....we must remember...this can only
    be a partial test. Even if it fails to hold up
    due to obscure US law...that does NOT mean that
    other countries laws and court systems would
    do the same.

    As long as even one country fully honors the GPL,
    almost all countries would honor mattels
    copyright...which is why the GPL is important...
    without the GPL mattel could stop mirrors in
    justr about any country

    All one has to do is put up a mirror in a free
    country...then its all set. Now comes the
    questions....

    If a US citizen, residing in the US, puts up
    something on a web server that is in another
    country...is he bound by US law when that server
    is distributing files to US residents?

    I really could see arguments go both ways on this.
    (somehow I think courts would rule that they
    are...tho what would you expect? authoritarians
    don't like to give up their illusions of power)

    What about links? Would it be illegal for my web
    page, in the US on a US server, to link a copy of
    the program that is on a non-us server, in a
    country where the distribution is deemed legal?

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