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Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

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Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#361

Post by ddrdrck_ »

OrangeMango wrote: post #126
ballenf wrote: post #80

Earlier quoted context omitted.

That book isn't an example of a contract, unlike the crazy Disney tweet. The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.

Yeah, so my thought when I bought it was to offer to sell it back to Disney for $25k or something. I could most likely get a pro-bono defense while Disney would pay a lot more than that in a lawsuit which I would most likely win. Most likely. I still haven't acted on it yet.

Please do ! This would make an interesting case to study and you would certainly become famous. I would not be as confident as you that you'd be likely to win though ...

Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#362

Post by tzs »

ncmncm wrote: post #358
skissane wrote: post #292

Earlier quoted context omitted.

Not all licenses are contracts. Some are deeds instead. ("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.) There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".

What he said. The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges). A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset…

> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).

Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.

> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.

That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.

The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:

1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,

2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,

3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and

4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.

Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.

What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.

Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#363

Post by ncmncm »

tzs wrote: post #362
ncmncm wrote: post #358

Earlier quoted context omitted.

What he said. The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges). A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset…

> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges). Where does it say that? I see no such language in the text of either GPLv2 or GPLv3. > A contract that has not been affirmed by exchange of consideration and at least implied consent is void. That's incomplete. Better would be to say that a contract needs consideration o…

I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".

I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.

I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.

And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.

This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).

Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#364

Post by tzs »

ncmncm wrote: post #363
tzs wrote: post #362

Earlier quoted context omitted.

> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges). Where does it say that? I see no such language in the text of either GPLv2 or GPLv3. > A contract that has not been affirmed by exchange of consideration and at least implied consent is void. That's incomplete. Better would be to say that a contract needs consideration o…

I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works". I see that you als…

> I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".

Neither of those state that it is not a contract.

> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.

Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".

> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent

A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.

Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#365

Post by benibela »

henrikschroder wrote: post #237
mholt wrote: post #44

Update from Disney: > The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus . These replies may appear in something special on May the 4th! https://twitter.com/disneyplus/status/1254849654585323525 ... as if that's really any better.

Wow. From their terms of use: "Disney DTC LLC and/or its affiliates and subsidiaries (collectively, “Disney” “we” or “us”) are pleased to provide to you certain websites, software, applications, content, products, and services (“Disney Products” and “Products”), which may be branded Disney, ABC, ESPN, Marvel, Pixar, Lucasfilm, FX, Fox Searchlight, 20th Century Fox, National Geographic, or another brand owned or licen…

I just noticed Google does the same:

>Will Google use my social media posts to promote Code Jam?

>If you share or post content on any Coding Competitions social media page(s) or tag a post with a Contest hashtag (e.g. #CodeJam) on your social media account, then Google may feature your Social Media Content in marketing and promotional materials for any Coding Competitions Contest. Learn more in the Coding Competitions Terms.

Guess it is more binding when they write that on their webpage than on their social media

Re: Disney claims anyone using a Twitter hashtag is agreeing to their terms of use

#366

Post by cookiecaper »

henrikschroder wrote: post #225
cookiecaper wrote: post #131

Earlier quoted context omitted.

This was adjudicated up to the Supreme Court: https://www.oyez.org/cases/2002/01-618 tl;dr: 7-2 as long as there is some type of time limitation, Congress is free to extend copyright terms.

Cool, so why not set the limit to the heat-death of the universe and be done with it?

> Cool, so why not set the limit to the heat-death of the universe and be done with it?

Presumably SCOTUS would say that an effectively-infinite timeline is not "limited" within the Constitutional definition of the word. Eldred v. Ashcroft basically tried to argue that continual decades-long extensions amounted to this, but the Court was not convinced.

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