EULA

[Brian L Massey]

On Thu, 25 Oct 2001 18:05:01 -0400 "Clare Snyder" <claresnyder at home.com>
writes:

> I would tend to agree, Bruce - If you have released a product to the 
> public
> domain, and then try to enforce ANY EULA, regardless how reasonable, 
> you are SOL.

Agree with what? That isn't what has happened here. The words "public
domain" appear in the very same text as the rest of the conditions
specified at the outset. What you describe above as "...and then try..."
wasn't a sequence of events that happened over time. Even ErikQ's post
wasn't suggesting that. Anyone who read even that initial file understood
that the technical meaning of 'public domain' *couldn't* have been meant
by the author, if you read the rest of the file; it is obviously stating
conditions of usage.

If you had read the usage agreement yourself, you would know that. (Oh
oh, another one caught.)

I agree the use of the term 'public domain' is confusing as you start to
read the UA, but fixating on those words and denying the clear intent of
the rest of the text would be like reading the following: "permission to
freely use the following material is granted, as long as ...", and then
hanging on the word 'freely', and ignoring the clause 'as long as ...'.
Your argument might be, "the author used the words 'permission freely
granted', so that overrides what comes next, namely the "as long as ..."
part. But that's a silly argument even the most desperate lawyer wouldn't
make.

>The sensible, and proper way to do it is retain copyright in the name
>of the group.State the product/design/etc. is the property of the
>DIY-EFI group, and can be used by any member, subject to the
>EULA, or whatever you want to call the "permission".

Completely unnecessary, even in a legal sense. Copyright these days is
*implied* without the need for a formal declaration. Just as it should
be. The courts finally recognized that you shouldn't have to scribble
your name or 'hands off' all over something to declare it yours. And the
statement in the file, while not precisely worded, is still an adequate
document to give the spirit of the permission granted. BTW, AFAIK there
was never the intention to limit permission to diy members only, as you
recommend above. It was I believe intended for use by *anyone* as long as
they agreed to it's modest conditions.

> What it
> comes down to is what he has done is not technically illegal, 

This sounds familiar; are you an admirer of Nixon or Clinton? :)

The simple facts are the 'usage agreement' stipulates that if you don't
agree with it's terms, you don't use the goods. It doesn't expect or rely
on that being inforceable with police power. It assumes that anyone
reading it has enough honor to abide by the wishes of the authors.
Whether that represents a 'legal contract' that is enforceable in the
technical sense is irrelevant, since nobody intended going to court with
it. But it's certainly close enough to be understandable to men of good
will. The issue is therefore not technical clarity of the agreement. If
the person approaching the diyWB info has any honor, and reads those
conditions, and decides he is going to partake anyway but has no
intention of honoring the conditions, then he's an untrustworthy dirtbag
(IMHO, of course). And yes, it's not technically illegal to be an
untrustworthy dirtbag, but it's a real good start. :)

Whether someone could be prosecuted for breaching such a 'contract', or
whether you could worm out of such an informal document with a good
lawyer, is really not only beside the point, but is some sort of sad
confession that you need those kinds of sanctions to guide you in
honorable action. Like I said before, legal requirements can't make you
honest; they presuppose most people are.

My firm does contract engineering work in the industrial controls field.
I review contract law *every day*, and although I'm not a lawyer, I do
have gray-haired experience in what 'attitudes' are required by us
writing contracts, in order to avoid trouble with clients in the future.
I can assure you that focusing on what you might 'technically' be able to
get away with, while overturning the obvious intent of the contract, is
the *best* way to involve yourself in a lawsuit, not to mention
identifying you to the rest of the trade as someone who cuts corners and
can't be trusted to 'do the right thing' in addition to 'doing the thing
right'. Even judges, technical sticklers as they might be, give *great*
weight to the 'spirit' of a contract, in deliberating over disputes
whenever things are poorly worded. I've seen it happen at least a couple
times in my career.

>I'm glad I can deal directly with the "authorized" supplier of the
>board, rather than having to buy the "knockoff", either through
ignorance or
>necessity.

'Necessity'? Pardon me, but that's an interesting turn of phrase. So you
wouldn't have any problem with buying a board from someone who doesn't
have permission from it's authors to use even the circuit, if you
considered that 'necessary'? I hope that doesn't mean your abiding by the
usage agreement is simply a matter of convenience. That's a bit of the
current problem, isn't it.

Brian
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