linux-kernel - Re: GPL vs non-GPL device drivers

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Date:	Mon, 19 Feb 2007 23:12:45 +0100
From:	Michael Dreher <michael.dreher@...-konstanz.de>
To:	linux-kernel@...r.kernel.org
Cc:	"Michael K. Edwards" <medwards.linux@...il.com>,
	"linux-os (Dick Johnson)" <linux-os@...logic.com>,
	Alan <alan@...rguk.ukuu.org.uk>,
	"Scott Preece" <sepreece@...il.com>,
	"Alexandre Oliva" <aoliva@...hat.com>, davids@...master.com,
	"Linux-Kernel@...r. Kernel. Org" <linux-kernel@...r.kernel.org>
Subject: Re: GPL vs non-GPL device drivers

Am Montag, 19. Februar 2007 22:50 schrieb Michael K. Edwards:
> On 2/19/07, linux-os (Dick Johnson) <linux-os@...logic.com> wrote:
> > FWIW. A license is NOT a contract in the United States, according to
> > contract law. A primary requirement of a contract is an agreement. A
> > contract cannot, therefore, be forced. Licenses, on the other hand,
> > can be forced upon the user of the licensed material.
>
> Wrong.  Acceptance through conduct has been integral to contract law
> in common-law countries since the days of writs in Chancery, and is
> part of the codification of the difference between contracts "in
> personam" and "in rem".  Allow me to recommend Kevin Teeven's "A
> History of the Anglo-American Common Law of Contract".  It is settled
> law throughout the Western world that non-exclusive licenses of
> copyright need not be formalized, or even put in writing.  

Well, what you write is certainly not correct in Germany.
At least here in Germany, a licence is NOT a contract.
If you go into a shop and buy a cardboard box with a software CD in it, 
the only contract you have made is that contract with the shop
owner about purchasing this very box. The german law is very
explicit in stating that there is absolute NO contract with the producer
i.e., the software company which has the rights on the software.
And as a consequence, that funny microsoft eula is totally void,
even if you have clicked at "I agree". Never ever (at least in Germany)
constitutes the act of clicking this button a contract with the software
company. Because the law says that a contract is not valid without an 
agreement, and the law gives some requirements on the form of an agreement in
order to be valid, and "clicking somewhere" is not enough.

Of course, the user has to honor the general law which forbids copying and
distributing the software (except with permission from the creator).

Michael
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