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OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

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Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#71

Post by tesseract »

ndsipa_pomu wrote: post #67
eli wrote: post #62

Earlier quoted context omitted.

If you're not a party to the agreement then isn't possessing the software a copyright violation?

Only if you are distributing it or making a copy. As to how you came into possession of the software without making a copy is another question.

For binary software licenses, historically a lot of them have been premised on the idea that it is impossible to use the software without copying it from installation media onto local storage and/or from storage into RAM for execution, meaning that effectively it's possible to use contracts based in copyright law to set terms for the use of the software and not just for what a human might think of as "copying".

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#72

Post by [deleted] »

josephcsible wrote: post #65
eli wrote: post #62

Earlier quoted context omitted.

If you're not a party to the agreement then isn't possessing the software a copyright violation?

If I buy a used computer, do I have to agree to the terms of every publisher with software on it to not break copyright law?

[deleted]

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#73

Post by DannyBee »

delfinom wrote: post #41
DannyBee wrote: post #31

Earlier quoted context omitted.

Actually, this is totally wrong, at least in the US. They can't bind you for doing nothing (opening a package for example). They can bind you if you get the benefit of the bargain, which you would by using the software.

There was a Samsung court case in recent times they lost over this btw. They argued users were bound to arbitration due to the EULA piece of paper in the box. The court ruled against Samsung because Samsung could not reasonably prove a user read this piece of paper in a box even though they were using the phone that was packaged. The court explained the Samsung phones would have to prompt the EULA to have active acce…

Not quite - that was because it was labeled a warranty brochure. There are also weird warranty vs contract issues there.

The court, on the contract issue, found that people would not expect to find an arbitration restriction in the warranty brochure, and without something else pointing them at it, it wasn't good enough.

"Here, Samsung entitled the brochure “Product Safety & Warranty Information.” The title would not put a reasonable person on notice that the brochure contained “a freestanding obligation outside the scope of the warranty.” "

The court would have been satisfied if they had put a big ole sticker on the phone screen that said "the warranty brochure contains important arbitration restrictions, you should read it".

No active acceptance necessary ;)

The court was also clear that in-box unilateral contracts are okay under california law.

In this case, you are right the question will be whether someone would be expected to notice it exists.

Unlike a random warranty brochure containing arbitration provisions, EULA.txt and friends are common in software, so a court is likely to find the terms would be there. Of course, if they lose they'll clickwrap it and win.

Don't get me wrong, i think in-box contracts are nonsense, but my personal view is not the law, or even close to it.

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#74

Post by yjftsjthsd-h »

KronisLV wrote: post #43
jasonjayr wrote: post #25

> Commercial Use means corporate use intended for commercial advantage, monetary compensation or profit-making, including but not limited to e.g. offering ownCloud Infinite Scale based software-as-a-service (SaaS), platform-as-a-service (PaaS) or any other types of hosted services to a third party. Whereas scenarios in which such a commercial advantage is intended to be realized indirectly by leveraging ownCloud Infi…

> basically an Anti-AWS clause to protect against the ElasticSearch/OpenSearch thing. I wonder what the best license would be for the projects that want something like this? I mean SSPL got a lot of flak. Something like BSL was regarded more positively, but also was meant for a slightly different use case.

Just use AGPL; it doesn't actually restrict anything legally, but none of the big cloud providers will touch it.

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#75

Post by imtringued »

Semaphor wrote: post #37
deng wrote: post #28

Earlier quoted context omitted.

Unfortunately, it is not that easy. First off, "contract law", apart from being incredibly complex, is also different depending on where you are located. Even within the US, we have seen different rulings on whether EULAs are enforceable or not. It often depends on how these EULAs are presented to the user and how exactly they are worded. Here in Germany, I'm pretty sure that the above would not be enforceable, but t…

> Here in Germany I agree, because of AGB-law, though that depends on some stuff, the usual EULA-void rules were because you had to buy the software before agreeing to the EULA instead of the other way around. Not sure what would happen here. But IIRC that is generally not relevant for contracts between companies, only between consumers and companies. Not quite sure about that part, though.

https://www.gesetze-im-internet.de/bgb/__310.html

>(1) § 305 Absatz 2 und 3, § 308 Nummer 1, 2 bis 9 und § 309 finden keine Anwendung auf Allgemeine Geschäftsbedingungen, die gegenüber einem Unternehmer, einer juristischen Person des öffentlichen Rechts oder einem öffentlich-rechtlichen Sondervermögen verwendet werden.

§ 308 and § 309 are "catalogues" of various conditions that nullify an AGB clause. Also, contract clauses in individual contracts can still be considered as part of the AGB even if the company gives you a separate AGB document.

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#76

Post by hannob »

KronisLV wrote: post #43
jasonjayr wrote: post #25

> Commercial Use means corporate use intended for commercial advantage, monetary compensation or profit-making, including but not limited to e.g. offering ownCloud Infinite Scale based software-as-a-service (SaaS), platform-as-a-service (PaaS) or any other types of hosted services to a third party. Whereas scenarios in which such a commercial advantage is intended to be realized indirectly by leveraging ownCloud Infi…

> basically an Anti-AWS clause to protect against the ElasticSearch/OpenSearch thing. I wonder what the best license would be for the projects that want something like this? I mean SSPL got a lot of flak. Something like BSL was regarded more positively, but also was meant for a slightly different use case.

The problem is really that if you want to be free and open source software then you can't have an anti AWS or anti big cloud clause.

And that's what the issue with SSPL and others was. If they had said "open source didn't work for us, we try something different", I think they wouldn't have gotten all the flak. But they tried hard to obfuscate that and be like "we're kinda-sorta-open-source (not really, but we want you to believe it)".

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#77

Post by imtringued »

delusional wrote: post #9
Y_Y wrote: post #2

> "By installing, copying or otherwise using ... you agree to be bound by ... " Why do people keep writing shit like this. Whoever wrote that EULA no doubt has an understanding of contract law and knows that you can't just unilaterally bind someone into an agreement like that. I know it's classic EULA nonsense, but it still bugs me how you can just write whatever and hope people naively take your word on it.

It should be disbarrable to knowingly write unenforceable EULA's.

There is a difference between individual clauses being invalidated and the whole contract being invalidated.

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#78

Post by rollcat »

t0mas88 wrote: post #17
Zephyo_ wrote: post #11

Earlier quoted context omitted.

I am very uneducated on this subject, what exactly is the problem with that sentence?

Apparently the code is Apache licensed, so you can use that code. Putting a file somewhere that states "you agree to X by using the software" without you signing anything isn't an enforceable contract. If they want you to agree to something it needs to be (e-)signed. Not just stating an action and claiming that by doing that you agree to a contract.

I was just wondering, if I were to fork the code, remove the EULA, and use that fork as usual - I would not be violating the terms of the Apache license, right?

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#79

Post by dragooc »

plagiarist wrote: post #61
dragooc wrote: post #39

With this PR https://github.com/owncloud/ocis/pull/6755 I tried to make the policy a bit more clear after we got a nice issue report about it. To be clear: only binary builds of stable versions of Infinite Scale that the ownCloud company is shipping are protected by the EULA. The source code license is Apache2 or AGPL for some parts, and is not touched by this of course. The EULA even allows free use widely, includin…

Am I reading correctly that building from source would still allow for commercial hosting contexts (subject to AGPL)? If that is the case, I don't understand how the EULA benefits anyone enough to want it.

The source is available under free licenses, so you can build and do with it what these licenses allow, which is basically anything.

Most serious companies however appreciate a proper business relationship with defined, vendor supplied builds, that they can plan with etc. Remember that somebody who builds from source can not call us asking for reactions of any kind.

That is were the EULA comes to value.

Re: OwnCloud Infinite Scale added EULA that prohibits commercial use [pdf]

#80

Post by ndsipa_pomu »

tesseract wrote: post #71
ndsipa_pomu wrote: post #67

Earlier quoted context omitted.

Only if you are distributing it or making a copy. As to how you came into possession of the software without making a copy is another question.

For binary software licenses, historically a lot of them have been premised on the idea that it is impossible to use the software without copying it from installation media onto local storage and/or from storage into RAM for execution, meaning that effectively it's possible to use contracts based in copyright law to set terms for the use of the software and not just for what a human might think of as "copying".

I recall that being an argument used against piracy, but I don't know if it was successful or not. It seems disingenuous to me as you could classify almost any process to be "copying" e.g. reading a book is using light to make a "copy" of the printed words onto your retinas.
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