Italian Courts Find Open Source Software Terms Enforceable

Re:Italian Courts Find Open Source Software Terms Enforceable by smoldesu on Monday December 27, 2021 @11:48AM (#29704044)

I agree. There's a lot of buzz about how "it's never been proven in court" and all that, but open source software licensing is so cut and dried at this point that it just ends up sounding silly. If having a license.md file in your source code isn't enforceable, then how do multi-billion dollar apps get away with hiding their terms of use behind several clicks and thousands of lines of incomprehensible legal jargon? It would certainly be fun to watch Big Tech hire their gold-medal mental gymnasts to fight it in court, if nothing else.

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Re:Italian Courts Find Open Source Software Terms Enforceable by Hamuko on Monday December 27, 2021 @12:08PM (#29704283)

There are probably thousands of terms of service agreements that are not legally binding in the EU.

https://europa.eu/youreurope/citizens/consumers/unfair-treat...

For example, in 2012 the Court of Justice of the European Union declared that reselling digital software is legal no matter what any EULA attached to the software might say.

https://www.engadget.com/2012-07-03-eu-court-rules-its-legal...

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Re:Italian Courts Find Open Source Software Terms Enforceable by cge on Monday December 27, 2021 @01:55PM (#29705522)

Another, rather surprising example, is that while almost every proprietary EULA has clauses prohibiting it, reverse engineering, including decompilation, is legal regardless of EULA terms in the EU for several purposes, including interoperability and, apparently, fixing bugs.

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Re:Italian Courts Find Open Source Software Terms Enforceable by jeroenhd on Monday December 27, 2021 @01:00PM (#29704869)

That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Only the parts of the agreement that violate the local laws can be ignored.

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Re:Italian Courts Find Open Source Software Terms Enforceable by kergonath on Monday December 27, 2021 @03:30PM (#29706455)

> That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Different people have different ideas of what is reasonable and what is bullshit. Different jurisdictions as well, which is why some clauses in EULAs written by American lawyers are invalid in the EU.

> Only the parts of the agreement that violate the local laws can be ignored.

That is the whole point: to know for sure which ones you can ignore, you need to test them in court.

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Re:Italian Courts Find Open Source Software Terms Enforceable by GoblinSlayer on Wednesday December 29, 2021 @10:23AM (#29725600)

USA is a special case, because they have a whole moral rule "fake it till you make it" to the point that it works in courts sometimes, and then everybody is the infinite future are screwed because of the precedent law until the supreme court fixes it.

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Re:Italian Courts Find Open Source Software Terms Enforceable by luckylion on Monday December 27, 2021 @01:25PM (#29705156)

Wouldn't that only (reliably) be the case if they contain a severability clause stating that, if any clause is found to be invalid, the rest of the license agreement shall remain valid?

After all, you're typically agreeing to a package, not individually to each term.

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Re:Italian Courts Find Open Source Software Terms Enforceable by brewmarche on Monday December 27, 2021 @01:48PM (#29705436)

Indeed in German law a partially void contract becomes completely void unless it is protected by a severability clause (which means in practice all contracts have them and they usually state that the void part is to be replaced by something with the same or similar economic consequences).

Standard form contracts (take it or leave it rules that are distributed to everyone) are exempt from this though (here the void part falls back to default rules).

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Re:Italian Courts Find Open Source Software Terms Enforceable by namibj on Monday December 27, 2021 @05:03PM (#29707370)

Indeed, the normal threshold for whether a contract was/is an AGB (stnadard form contract; allgemeine geschaeftsbedingungen = general rules of business ~ TOS) is whether it was practically negotiable.

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Re:Italian Courts Find Open Source Software Terms Enforceable by GoblinSlayer on Wednesday December 29, 2021 @10:27AM (#29725654)

No, that effectively enables scams. To prevent scams courts disallow using inability to enforce unlawful clause as a reason to terminate the contract. You typically buy goods, not contracts.

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Re:Italian Courts Find Open Source Software Terms Enforceable by iso1210 on Monday December 27, 2021 @02:02PM (#29705608)

If I buy the latest superman film on DVD and play it, technically I'm making a copy. I don't have to agree to a license to do this, as it wouldn't be a breach of copyright law to make a transitory copy myself for the purposes of using it. I can't copy it to give to someone else though, that would be against copyright law.

Likewise if I take some GPL software, I can do whatever I want with it to run it, including copying it into memory. I can't give a copy to anyone else (including derivative works such as a binary) without agreeing to the GPL.

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Re:Italian Courts Find Open Source Software Terms Enforceable by seba_dos1 on Monday December 27, 2021 @02:39PM (#29705979)

> Likewise if I take some GPL software, I can do whatever I want with it to run it

That's true, but unlike the DVD case it's so only because the GPL license explicitly grants you this right. If it didn't, you wouldn't be able to run it at all.

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Re:Italian Courts Find Open Source Software Terms Enforceable by iso1210 on Monday December 27, 2021 @05:13PM (#29707451)

Based on what?

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Re:Italian Courts Find Open Source Software Terms Enforceable by seba_dos1 on Monday December 27, 2021 @06:56PM (#29708450)

Based on copyright laws. Here in Poland you can even download a copyrighted movie or a song as long as you don't distribute it; you can't however use any software without a license that lets you do it. The GPL licenses explicitly do ("This License explicitly affirms your unlimited permission to run the unmodified Program.").

GPL is actually kind of a special case when it comes to licenses since it mostly cares about redistribution in order to implement its copyleft mechanism, but generally licenses are tools used to give users permission to use the software under specified conditions. Without a license (written or verbal), there's no permission to do anything whatsoever.

You may be confusing it with using a self-modified copy of code under GPL. Since GPL only cares about sharing the modified source with actual users, you won't have to share your modifications with anyone as long as you remain the only user of that modified work.

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Re:Italian Courts Find Open Source Software Terms Enforceable by GoblinSlayer on Wednesday December 29, 2021 @10:57AM (#29725933)

>there's no permission to do anything whatsoever

What happens if you do?

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Re:Italian Courts Find Open Source Software Terms Enforceable by seba_dos1 on Wednesday December 29, 2021 @12:55PM (#29727479)

You're violating the copyright. In practice, usually nothing until the copyright holder decides to sue you for damages or it gets found during some inspection (but the latter is mostly applicable to companies).

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Re:Italian Courts Find Open Source Software Terms Enforceable by iso1210 on Saturday January 01, 2022 @08:16AM (#29758027)

Unsurprisingly I'm not familiar with the ins and outs of Polish copyright law, but in other countries the act of copying something into memory to use it (say copying a frame of video into a frame buffer on a DVD) is not a breach of copyright.

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Re:Italian Courts Find Open Source Software Terms Enforceable by seba_dos1 on Sunday January 02, 2022 @12:03PM (#29770520)

Neither it is in Poland (which you would already know if you read what I wrote more carefully).

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