A "Large Hardware Vendor" Wants A EULA Displayed For Firmware Updates On Linux

[bridgman]

When we discuss what GPL gives or takes, it is not relative to empty state, but to previous legal state. Here, the Copyright Act is the default. You can do everything that it allows and cannot do everything it disallows. It is Copyright Act that disallows you to modify, build and distribute someone's other code.

Would the same not apply to a EULA, which typically grants you the right to use and distribute the code and extends those same rights to anyone who receives the code from you ?

By your logic a EULA does not take any rights away either, although I guess you could argue that copyright law may not explicitly prohibit reverse engineering in some jurisdictions.

[ssokolow]

Not sure I agree with that... a EULA is just another license agreement.

All EULAs are license agreements but not all license agreements are EULAs.

[ms178]

In Germany you would have no chance to sue a coffee shop for getting burnt - if you was the one holding the coffee. And all these warnings ... no one reads those: legal madness.

Exactly, we don't have a strict liability (we have a fault-based liability) which means the coffee shop owner must be at fault for something (plus fulfill some other requirements to be liable for his actions or omissions which must be proven by the plaintiff), and there are obligations for the customer too to use his brain and common sense (in the original US case though the coffee was arguably too hot to drink right away and needlessly hotter than the competition, the customer also suffered severe burns while spilling it but eventually the case was settled out of court).

So if the current automate nonsense will break it would be better far all ... but not to present those idiotic texts!

I am all in favor for not presenting idiotic texts albeit I cannot tell how high the risk involved in the process really is or if they just want to make sure that no one tampers with the files. From my thinking, the whole firmware updating process would be solely within the sphere of the user if the firmware had to be flashed manually. Hence I'd argue that most risks which come from this process would be his own as he has the power to decide if he wants to apply it or not. If it was flashed in an automatic way the risks associated with that process could be either in the sphere of the manufacturer or software distribution as the user wouldn't have a way to control it.

[lu_tze]

Not sure I agree with that... a EULA is just another license agreement. Even a GPL license takes away rights, eg the ability to modify, build and distribute the code without making the changes available in source form.

I agree that practically speaking there aren't many things a user can do with FOSS-licensed code that would make a lawyer get itchy about having the license explicitly approved in order to make legal action more likely to succeed, but that is just a matter of degree not black-and-white.

(am I still allowed to say black-and-white to indicate a high contrast ?)

If a third party started building modified GPL-licensed code into a black-box product it's a safe bet the lawyer would be saying "you should have required them to explicitly accept the GPL license before they downloaded the source".

When we discuss what GPL gives or takes, it is not relative to empty state, but to previous legal state. Here, the Copyright Act is the default. You can do everything that it allows and cannot do everything it disallows. It is Copyright Act that disallows you to modify, build and distribute someone's other code.

GPL allows you to do so, given you fullfill some conditions. Yes, there are other licenses, like MIT, that allow you to do so with even fewer conditions. But there's no EULA in the world that would do something similar.

The last paragraph is not a problem; the lawyer of the other side would ask to show the permission to distribute given code. You don't have it? Too bad, you are breaking law of the land - the copyright -- not someone's license agreement.

[bridgman]

FOSS licencess specifically are not like EULAs. The difference is, you do not have to agree to them (FOSS licences) and you can still use the software. On your usage, their acceptance or no acceptance has exactly zero effect. These licenses do not even bother with regulating anything the user could do in the course of normal usage.

What FOSS licences do: they give you rights, that you otherwise would not have. In the normal course of events, you would have to behave towards the software according to the Copyright Act. When you agree to these licenses, they give you right to distribute someone's else work. That is something the Copyright Act doesn't allow at all. They might set up that conditionally, which is exactly what GPL2/3 are doing. Again, with the acceptance of FOSS licence you are getting rights that the law (the default) would not grant you.

Compared to that, there's no EULA like that. EULAs take away rights from users, they do not grant them additional ones.

Not sure I agree with that... a EULA is just another license agreement. Even a GPL license takes away rights, eg the ability to modify, build and distribute the code without making the changes available in source form. Conversely, our EULAs (I'm using ours just because I am familiar with them) explicitly grant a number of usage and redistribution rights.

I agree that practically speaking there aren't many things a user can do with FOSS-licensed code that would make a lawyer get itchy about having the license explicitly approved in order to make legal action more likely to succeed, but that is just a matter of degree not black-and-white.

(am I still allowed to say black-and-white to indicate a high contrast ?)

If a third party started building modified GPL-licensed code into a black-box product it's a safe bet the lawyer would be saying "you should have required them to explicitly accept the GPL license before they downloaded the source".

[mdedetrich]

Sorry for putting my law hat on, but it is not that easy: They are only invalid if you haven't had the chance to view them before purchasing the license. This would be true for most software which was distributed on a physical medium, but if they honor this requirement with digital distribution services they could have become part of the contract. This doesn't mean that every clause is valid though, as the AGB-Kontrolle still limits what can be enforced by these EULAs.

Most EULA's have content that is actually not legally binding because its not possible for an EULA to override laws in the host country. An EULA is a written contract, and just like any other written contract it cannot just negate laws of said country.

Furthermore a lot of countries for example have laws which dictate that any kind of legally binding contract (which EULA tries to be) must be easily comprehensible and a lot of EULA's would fail such a test. The. EU is such an example

[azdaha]

Bastardization of a fine project.

Alternatively, a more in-depth cost vs. benefit analysis would be warranted for all parties involved.

[lu_tze]

Um, no. You are aware that the GPL v2 and GPL v3 are also EULA's, correct? So are MIT, Apache, and all of the open-source license agreements. Literally every piece of every Linux distro is covered by one EULA or another. There is nothing inherently bad about EULA's.

<voice type="trump">Wrong</voice>

FOSS licencess specifically are not like EULAs. The difference is, you do not have to agree to them (FOSS licences) and you can still use the software. On your usage, their acceptance or no acceptance has exactly zero effect. These licenses do not even bother with regulating anything the user could do in the course of normal usage.

What FOSS licences do: they give you rights, that you otherwise would not have. In the normal course of events, you would have to behave towards the software according to the Copyright Act. When you agree to these licenses, they give you right to distribute someone's else work. That is something the Copyright Act doesn't allow at all. They might set up that conditionally, which is exactly what GPL2/3 are doing. Again, with the acceptance of FOSS licence you are getting rights that the law (the default) would not grant you.

Compared to that, there's no EULA like that. EULAs take away rights from users, they do not grant them additional ones.

[lateo]

Cut it right in two : have a generic text disclaiming that you're using the stuff at your own risks.
If not enough, the unsatisfied vendor can go explain its customers that its eula is more important than their clients' hardware safety or functionality.

[DanL]

It's ASUS. I'm 95% sure of it.

You can download a BIOS update off their site without EULA.