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Re: [BUG] TortoiseSVN installer - GPL is not an EULA

From: Thomas Hruska <thruska_at_cubiclesoft.com>
Date: Mon, 21 Mar 2011 01:57:03 -0700

On 3/20/2011 10:48 PM, Dmitry wrote:
> Hey.
> 20.03.11, 12:01, "Jari Aalto"<jari.aalto_at_cante.net>:
>> There is one problem: a dialog box is presented requiring to accept
>> GPL license before the software can be installed. This is misleading
>> and incorrect use of GPL.
> How should the developer present the disclaimer then? That dialog present the GPL text along with the disclaimer. "I agree" mostly belongs to the disclaimer. The purpose of the disclaimer is to shield the developers from liability in case the program malfuncitons and causes any unintended negative consequences. How should such shielding be done without the "I agree"-kind click-through?
> Thank you.
> Dmitry.

Doing a couple searches turns up a campaign that Jari Aalto has going to
eliminate "I agree" from various software installers. I'd be wary of
this individual. I'm not sure what Jari's motivations are or what this
person's legal expertise is. I'm a bit surprised to see developers are
changing their installers without consulting a real lawyer first. This
should set warning bells off in people's minds and give pause to
consider the implications as Dmitry has done.

But let me preface my reply with "I am not a lawyer" (but I've got a
pretty good clue). I'm also not a TSVN dev - just a lurker.

In the United States, "I agree" is considered to be clickwrap licensing
because it requires the user to explicitly agree to all terms and
conditions contained therein before continuing installation. Most of
the statements of the GPL are rather harmless and basically make sure
that all GPL'ed source is open and public for which clickwrap isn't
really necessary. However, there are statements that could require
explicit confirmation to protect the developer from harm. Without an "I
agree" clickwrap license, all legal statements which require explicit
confirmation by the receiving party may eventually be viewed as void in
a court of law. Specifically, without clickwrap licensing the GPL,
sections 15 (Disclaimer of Warranty) and 16 (Limitation of Liability) in
GPL v3 and equivalent sections 11 and 12 in GPL v2 might be voided in a
court of law due to a lack of explicit confirmation since both
statements directly reference the relationship between the user of the
product and the developer of the software. Clicking "Next" without
prior agreement may not constitute sufficient explicit confirmation.
Therein lies the danger.

In essence, Jari is asking developers to potentially take on significant
increased legal risk to make themselves liable for any and all damages
caused by their software regardless of what the GPL says. I find this
disconcerting especially given that TSVN is a Windows Shell Extension.
Writing shell extensions that don't crash Windows Explorer at
inopportune moments is quite difficult. IMO, given this day and age of
lawsuit happy lawyers, it is better to be safe than sorry.

Jari seems to be using this as the basis for the argument presented:


Which has this statement: "With or without a click through, the GPL's
rules remain the same." To the best of my knowledge, that is a
completely untested statement in any court of law. If it has been
tested, the FSF needs to clarify the statement with links to the
relevant judgments. The implications are serious if they are wrong.

There is plenty of legal precedent set for "I agree" clickwrap
licensing. Since, according to the FSF, having an "I agree" doesn't
change the meaning or rules of the GPL, they appear to imply that it
doesn't hurt to use one. Thus, as I see it, developers who use a
clickwrap agreement for GPL software benefit from both existing legal
precedent AND the GPL.

But as I said earlier, I'm not a lawyer nor a TSVN dev. Do not take
anything said by myself as legal advice. Please consult a lawyer before
making a change like this.

Thomas Hruska
CubicleSoft President
Barebones CMS is a high-performance, open source content management 
system for web developers operating in a team environment.
An open source CubicleSoft initiative.
Your choice of a MIT or LGPL license.
To unsubscribe from this discussion, e-mail: [dev-unsubscribe_at_tortoisesvn.tigris.org].
Received on 2011-03-21 09:57:14 CET

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