Please read the Disclaimer and Distribution
clauses at the end of this document.
Introduction
This document has been written in an attempt to review and
contrast the samples of licenses made available by Microsoft and the
Free/Open Source Software (FOSS) community. As these two have
now become the most prominent purveyors of platforms and
software application technology in the computer industry worldwide, we
feel it would be instructive for business and organisational users to
have a plain-language analysis of these key components of the software
they use. We will also attempt a very simple quantitative analysis of
what portions of both licenses devote to giving users
rights, taking away user rights, and limiting the extent to which users
can make legal claims or sue the purveyors of the software from both
camps.
The Microsoft Windows XP Professional End User License Agreement
(the EULA hereafter) was selected as representative of the
current-generation license provided by Microsoft for business-grade
systems. The GNU General Public License (the GPL hereafter) has been
selected as the most commonly-used Free/Open Source Software (FOSS)
license. The GPL is used by well-known
platforms and software technology such as Linux, GNOME, KDE, OpenOffice.org and MySQL.
While much of what we will cover may be known to some readers, we
believe that there is widespread ignorance of both the EULA and the
GPL. We will thus make every effort to provide a
clear, simplified analysis of both, to assist in the better
understanding of these licenses which are very important to all users
of computers.
Document Format in PDF
This document is made available in PDF format, to allow for
widespread viewability on most computer platforms, and for high-quality
printed output. It may also be made available in HTML
format.
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Translation to Other Languages
The authors give explicit permission for you to translate and
reproduce this document, as long as you agree to maintain the integrity
and intended-meaning of the original document. A note should be sent
to the authors of your intention, and of the final online URL of the translated document.
Updated Versions of this Document
It is the intention of the authors to update this document in
light of new analysis or corrections. New versions of this document, if
any, will be made available on the Internet here:
http://www.cybersource.com.au/cyber/about/comparing_the_gpl_to_eula.pdf
Methodology
The authors will take the approach of including segments of
each of the two licenses we are comparing, interspersed with our own
comments to highlight the issues we will be discussing.
We will determine what rights are allocated to the users of both
EULA and GPL software, as well as what restrictions are placed on the
rights of the users. We will create a table outlining the attributes
of both licenses, along with our analysis of whether these attributes
are a positive or negative from the perspective of prospective users of
both types software.
Finally, we will make available a detailed executive summary of
the core similarities and differences between the licenses, to give
busy readers a rapid, one page overview.
Key
The license portions we include here are for the purposes of
exposition and commentary. All license portions are shown with a
blue-gray background.
We make every effort to concentrate on just those areas of both
licenses which have specific, pertinent content to convey to our
readers. We will explicitly state, throughout the document, where
we have extirpated segments of otherwise un-interesting license text, by using an ellipsis [...].
We will also highlight, using yellow background, any particularly interesting elements or phrases.
Responses to the Analysis
We welcome your input on any topic which we touch upon within this document.
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licenses. We will also try and provide a quantitative
determination of what positives both licenses carry for you, the user,
along what the negatives are.
In general, a large part of the Microsoft EULA concerns itself
with limiting your use of the software, and with absolving Microsoft
from any responsibilities it may have with respect to the warranty. In
contrast, the GPL spends most of its time specifying the rights
allocated users, and to responsibilities for the use of the software
from the perspective of software distributors or programmers who
incorporate GPL code. Few user-level restrictions are evident.
It is one of the more generally repeated presumptions of users who
select to purchase and operate Microsoft's applications released under
the EULA (over corresponding Open Source applications
released under the GPL,) that they do so because they have someone to
hold legally responsible in case of application software failure or
catastrophic error. A close reading of the EULA reveals that
the licence explicitly removes all avenues and all recourse that a user
of Microsoft's software has for legal relief of any sort. At best, you
may recover the cost of the software product, or US$5.
Further, to the best of the authors' knowledge, no single person
or organisation which is a user of Microsoft's software has ever
successfully litigated against Microsoft with respect to application
software failure or catastrophic error, in the 27 years of their
operation. If you are aware of any such instance, we would welcome full
details.
What follows is not legal advice but the opinion of the author
as to the practical management interpretations and a very brief
overview of both licenses, highlighting what proportion (simply
enumerated by highlighted paragraph section line-count) of each license
allocates rights to you, takes rights from you, or limits your rights
to legal relief (i.e, suing the purveyor of the software.) This is
not intended as anything more than a cursory and simple quantitative
analysis of each license, to give an indication of the core areas of
focus and overall flavour.
Quantitative Analysis
EULA GPL
The percentage of the licence which limits your rights 45% 27%
The percentage of the licence which extends your rights 15% 51%
The percentage of the licence which limits your remedies 40% 22%
The conclusion we reach is that the majority of the Microsoft
EULA appears to protect Microsoft and limit the choices, options and
actions taken by the users of the software covered by that license.
In contrast, the majority of the GPL is designed to apportion rights to
the users of the software covered by that license, with a secondary
emphasis on protecting the originating developers of that
software, in respect to the continuation of the availability of the
software source-codes (under the GPL) in perpetuity. In all, a marked
contrast to the EULA.
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Analysis
Microsoft here claims that it allows users to return this product
for a full refund, if they are not happy to agree with the terms of the
license agreement. There have been numerous accounts of many users
failing to retrieve their outlay on Microsoft products, even
though they comply with this prescription. For instance, it appears to
be almost impossible to return an unused Windows XP product one has
purchased with hardware, and receive a refund, as many users of alternative operating systems (Linux, FreeBSD etc.) have found.
1. GRANT OF LICENSE. Microsoft grants you the following rights
provided that you comply with all terms and conditions of this EULA:
* Installation and use. You may install, use, access, display and run one copy of the Product on a single computer, such as
a workstation, terminal or other device ("Workstation Computer").
Analysis
Microsoft explicitly states that you can only install and use this
software on one, and only one computer. This does not allow you to
install on two computers, and only use one at a time.
Therefore, if you had one desktop and one laptop PC, you will only be able to install this software on one of them.
The Product may not be used by more than two (2) processors at any one time on any single Workstation Computer.
Analysis
Microsoft explicitly disallows you from using this software on a
computer system which has more than 2 CPUs. Thus, if you have a
computer with 4 CPUs, you will not be allowed to install this
software.
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to your computer. Presumably, Microsoft allows more connections
to computers running differently-licensed software, but then sells that
software at much higher prices.
You cannot really use any computer running this license's software to generally function as a web-server or a file-server.
Except as otherwise permitted by the NetMeeting, Remote Assistance, and
Remote Desktop features described below, you may not use the Product to
permit any Device to use, access, display
or run other executable software residing on the Workstation Computer,
nor may you permit any Device to use, access, display, or run the
Product or Product's user interface, unless the Device has
a separate license for the Product.
Analysis
Microsoft does not allow you to use general-purpose remote-control
software such as VNC or PCAnywhere to access this computer. Microsoft
provides its own method of remote access, and
appears here to be explicitly disallowing alternatives.
* Mandatory Activation. The license rights granted under this EULA are limited to the first thirty (30) days after you first
install the Product unless you supply information required to activate
your licensed copy in the manner described during the setup sequence of
the Product. You can activate the Product through
the use of the Internet or telephone; toll charges may apply.
Analysis
Microsoft states that you can only run this software that you have
purchased, for 30 days. After this 30 day period, you will be asked to
supply any information they ask for, in order to continue using
this software. Some charges for communications with Microsoft to activate your software may arise.
There are potential privacy issues with respect to this requirement. We
understand that there are many users who are rankled at having to
authenticate themselves over and over in order to use
software they have legitimately acquired.
You may also need to reactivate the Product if you modify your computer
hardware or alter the Product. There are technological measures in this
Product that are designed to prevent unlicensed
or illegal use of the Product. You agree that we may use those measures.
Analysis
If you make some (unspecified) hardware alterations on your computer, the software may stop
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Analysis
Microsoft gives you the right to store the installation media
contents on a central point (a server) for later installation on
multiple computers. You need to acquire a separate license for each of
these
computers.
* Reservation of Rights. Microsoft reserves all rights not expressly granted to you in this EULA.
Analysis
If you have not been allocated any rights explicitly by this license, then these rights belong to Microsoft, not you.
2. UPGRADES. To use a Product identified as an upgrade, you must
first be licensed for the product identified by Microsoft as eligible
for the upgrade. After upgrading, you may no longer use
the product that formed the basis for your upgrade eligibility.
Analysis
When you buy an upgrade to this software, and install it, you are
no longer permitted to install or use this version of the software.
In practice, this may be an issue if you encounter legacy
software that you cannot get to run properly on the new version of the
platform software, as you are specifically not allowed to use the old
(working) version once you have installed an upgrade. This seems to be
irrespective of the fact that both operating systems may be installed
on a single computer (i.e dual-boot.) and therefore not
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Analysis
All subsequent updates and fixes to the software covered by this
license, are also covered by this license, unless Microsoft changes the
license.
Microsoft makes no claims that its updated licenses will retain
the spirit of this license. Therefore, they may produce licenses
(perhaps for critical software flaws) which you may find problematic or
exceedingly onerous. However, you will not be able to do anything about
these issues, as you may be in a position where you must install these
critical software updates.
4. TRANSFER-Internal. You may move the Product to a different
Workstation Computer. After the transfer, you must completely remove
the Product from the former Workstation Computer.
Analysis
If you install the software covered by this license on another computer, you must delete it from the first computer.
Transfer to Third Party. The initial user of the Product may
make a one-time transfer of the Product to another end user. The
transfer has to include all component parts, media, printed
materials, this EULA, and if applicable, the Certificate of Authenticity.
Analysis
You are able to sell or give the software away to one other user
(if you are the software's first licensee.) This can happen only once.
This means, that if you buy this software from the user who
purchased the software from Microsoft or a nominated reseller,
then you are not able to sell or give the software away to yet another
user.
If you give your copy of the software to another user, then you must remove the software from your computer completely.
The transfer may not be an indirect transfer, such as a
consignment. Prior to the transfer, the end user receiving the
transferred Product must agree to all the EULA terms.
Analysis
You must get the user you are selling/giving this software to, to
agree to these licence terms. How this is to be done, this license
doesn't specify.
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give your copy of the software to someone else, is to 'sell' it
to them, or give it to them, and completely remove your copy. Now, if
we follow Microsoft's dictum from above, this would mean
that this user can then not give you the software back, as it would
imply breaking your license agreement due to that user not being the
software's initial user.
Further, it might be construed that using any product released
under this licence in a cyber-cafe may constitute rental of this
product to third parties, and would thus contravene this licence. This
isn't
clear from the wording.
5. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Product,
except and only to the extent that
it is expressly permitted by applicable law notwithstanding this limitation.
Analysis
This clause implies that Microsoft requests that you do not attempt
to discover anything about how the software works, how it stores its
data, in what format it stores its data, nor how it communicates
with other software, among other things. Laws within your country may negate this requirement, however.
As many business solutions require integration with other
software items, and often, these other software items must be
programmed to interoperate with Microsoft software so that data can be
exchanged, this particular clause can raise serious business-continuity
and control issues, which you should consult your IT services
colleagues or service provider about.
An example of where this may be a problem follows. If you
purchase a software product to help run your business, and after some
time, the maker of the software product decides that it is not in their
interests to continue to produce a version of that software product,
then they may discontinue sales and support. You may continue to use
that product, but there may be instances of errors of policy,
design or systemic application-specific issues which become evident over
time, for example, something akin to the problems which arose with Year
2000 date-input formats, where you may have
problems using the aforementioned software beyond a certain sunset date.
However, you may by then, have many years' data locked-up in that
application. Due to you assigning your rights to
reverse-engineer parts of the application software covered by this
license, you may face additional problems in trying to recover that
data.
6. TERMINATION. Without prejudice to any other rights, Microsoft
may cancel this EULA if you do not abide by the terms and conditions of
this EULA, in which case you must destroy all copies of
the Product and all of its component parts.
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refunds.
As an example of where this may cause serious
issues, if you are using this software to run your business, and
Microsoft twigs to the fact that you have been accessing your office
workstation from
your home PC, over PCAnywhere (or equivalent,) then you are
technically in breach of license, and it is within Microsoft's legal
right to cause you to stop using their software.
7. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. *
NetMeeting/Remote Assistance/Remote Desktop Features. The Product
contains NetMeeting,
Remote Assistance, and Remote Desktop technologies that enable the
Product or other applications installed on the Workstation Computer to
be used remotely between two or more computers, even if
the Product or application is installed on only one Workstation
Computer. You may use NetMeeting, Remote Assistance, and Remote Desktop
with all Microsoft products; provided
however, use of these technologies with certain Microsoft products may require an additional license. [...]
Analysis
You are allowed to use the inbuilt remote-display facilities within this software.
* Consent to Use of Data. You agree that Microsoft and its
affiliates may collect and use technical information gathered in any
manner as part of the product support services provided to you, if any,
related to the Product.
Analysis
You give Microsoft the rights to collect information about your system and your use of the system.
This may or may not be an issue, depending on whether or not you trust Microsoft, or other third party suppliers in general.
Microsoft may use this information solely to improve our
products or to provide customized services or technologies to you.
Microsoft may disclose this information to others, but not in a form
that
personally identifies you.
Analysis
You give Microsoft the rights to supply other organisations with this information.
This may or may not be an issue, depending on whether or not you trust
these other firms. The problem of course, is that you do not know who
these other firms may be.
Further, no mention is made of exactly what information is
collected. No details are provided of exactly how Microsoft is able to
make the statement that no 'personally identifying' information will
be passed on to other firms. No process is provided for independent 3
rd--party review of this whole system, nor is there some form of
independent ombudsmen, who is given mandate and authority to
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Analysis
You give Microsoft the rights to collect for itself information
about your system via the Internet, and supply other organisations with
this information.
This may or may not be an issue, depending on whether or not you
trust Microsoft and these other firms. The problem of course, is that
you do not know who these other firms may be.
* Internet-Based Services Components. The Product contains
components that enable and facilitate the use of certain Internet-based
services. You acknowledge and agree that Microsoft may
automatically check the version of the Product and/or its components
that you are utilizing and may provide upgrades or fixes to the Product
that will be automatically downloaded to your
Workstation Computer.
Analysis
You give Microsoft the right to make changes to your computer, without them asking you.
This can have possibly critically-serious consequences, if for some
reason the software that Microsoft installs on your computer may cause
other, (important-to-you) software on that computer,
to stop working. You may not know that Microsoft has enacted a
change to your platform, and you may spend a substantial amount of time
investigating this application software failure which has
arisen, totally oblivious to that fact that your computer was changed without you knowing.
* Security Updates. Content providers are using the digital
rights management technology ("Microsoft DRM") contained in this
Product to protect the integrity of their content ("Secure
Content") so that their intellectual property, including copyright, in
such content is not misappropriated. Owners of such Secure Content
("Secure Content Owners") may, from time to
time, request Microsoft to provide security related updates to the
Microsoft DRM components of the Product ("Security Updates") that may
affect your ability to copy, display and/or play Secure
Content through Microsoft software or third party applications that utilize Microsoft DRM.
Analysis
If you listen to music or watch videos on your computer, you give
Microsoft the right to install systems technology which may prevent you
from moving, copying or watching this content, or
making archive or backup copies.
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prevent you from moving, copying or even watching this content.
This is likely to prevent you making backup copies of any music CDs or
of any DVDs you may have purchased, contravening
many years of accepted and legal fair-use doctrine.
8. NOT FOR RESALE SOFTWARE. Product identified as "Not for Resale" or "NFR," may not be
resold, transferred or used for any purpose other than demonstration, test or evaluation.
Analysis
In toto, specially marked products from Microsoft are to be used only as specified.
9. ACADEMIC EDITION SOFTWARE. To use Product identified as
"Academic Edition" or "AE," you must be a "Qualified Educational User."
For qualification-related questions, please contact the
Microsoft Sales Information Center/One Microsoft Way/Redmond, WA 98052-6399 or the Microsoft subsidiary serving your country.
Analysis
Academic versions of the software are to be used only by students or other qualified users.
As this definition may be a little gray, particularly once the
first user sells their copy on to others, this requirement may raise
possible breach of license or litigation problems if you are not sure
if you
are a 'Qualified Educational User'.
10. EXPORT RESTRICTIONS. You acknowledge that the Product is of U.S.
origin and subject to U.S. export jurisdiction. You agree to comply
with all applicable international and national laws
that apply to the Product, including the U.S. Export Administration
Regulations, as well as end-user, end-use, and destination restrictions
issued by U.S. and other governments. [...]
Analysis
Your use of this product needs to comply with the
export restrictions of the USA, even if you are not a US citizen.
Although you are agreeing to this, it is unclear how this would be
enforced.
Historical examples of this are the technology behind PGP
encryption -encryption levels that are legal and in widespread use by
governments in some countries, are illegal in USA.
There are numerous, complex destination restrictions enacted by
the US government, which you need to be aware of if you are taking this
software with you on your travels, or if you intend of
disposing of this product to a user in another countries.
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otherwise.
If an implied warranty or condition is created
by your state/jurisdiction and federal or state/provincial law
prohibits disclaimer of it, you also have an implied warranty or
condition, BUT
ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY
(NINETY DAYS).
Analysis
If something goes wrong with the software,
Microsoft will consider a warranty, but only in the first 90 days. This
is presumably unless your state or country laws specify otherwise.
AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO
WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not
allow limitations on how long an implied warranty or condition lasts,
so the above limitation may not apply to you.
Analysis
Microsoft provides NO WARRANTY to you, after the first 90 days.
Any supplements or updates to the Product, including without
limitation, any (if any) service packs or hot fixes provided to you
after the expiration of the ninety day Limited Warranty period are not
covered by any warranty or condition, express, implied or statutory.
Analysis
Any fixes, updates, or patches for the software covered by this
license, carry NO WARRANTY to you at all. Thus, if you download and
install (or, as indicated by this license, Microsoft downloads
and automatically installs) any software on to you computer, and
things stop working, you have no legal recourse for relief from
Microsoft whatsoever.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your
exclusive remedy for any breach of this Limited Warranty is as set
forth below. Except for any refund elected
by Microsoft, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO CONSEQUENTIAL DAMAGES, if the Product does not meet
Microsoft's Limited Warranty,
and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose.
Analysis
You agree that regardless of what degree of damage this software
may cause, at absolute best, Microsoft will only refund any payment you
have outlaid for this software.
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YOUR EXCLUSIVE REMEDY. Microsoft's and its suppliers' entire liability and your exclusive
remedy shall be, at Microsoft's option from time to time exercised
subject to applicable law, (a) return of the price paid (if any) for
the Product, or (b) repair or replacement of the Product, that
does not meet this Limited Warranty and that is returned to Microsoft with a copy of your receipt.
Analysis
You agree that Microsoft's sole financial responsibility to you, if
their software has catastrophic failure, is to either refund your
payment for the software, or repair/replace the software.
Obviously, the second option is only for any physically
defective package materials (such as damaged CD Rom.) Having Microsoft
replace the software executable binaries with exact replicas,
will doubtless give rise to the same problems, so is of no benefit to you.
You will receive the remedy elected by Microsoft without charge,
except that you are responsible for any expenses you may incur (e.g.
cost of shipping the Product to Microsoft).
Analysis
You give Microsoft the right to choice how it will refund you. You agree that you will pay any transportation costs.
This Limited Warranty is void if failure of the Product has
resulted from accident, abuse, misapplication, abnormal use or a virus.
Any replacement Product will be warranted for the
remainder of the original warranty period or thirty (30) days, whichever is longer.
Analysis
If the defect in Microsoft's software can be shown to be caused by
something not directly created or effected by Microsoft, for example by
your incorrect use of the software, then they are absolved of
proffering a refund.
Outside the United States or Canada, neither these remedies nor
any product support services offered by Microsoft are available without
proof of purchase from an authorized international
source. To exercise your remedy, contact: Microsoft, Attn. Microsoft
Sales Information Center/One Microsoft Way/Redmond, WA 98052-6399, or
the Microsoft subsidiary serving your country. [...]
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12. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears
above is the only express warranty made to you and is provided in lieu
of any other express warranties (if any)
created by any documentation, packaging, or other communications. Except
for the Limited Warranty and to the maximum extent permitted by
applicable law, Microsoft and its suppliers
provide the Product and support services (if any) AS IS AND WITH ALL
FAULTS, and hereby disclaim all other warranties and conditions, either
express, implied or statutory, including,
Analysis
You accept that Microsoft provides to you the software covered by
this license, as is, including with all the faults, errors, omissions,
bugs and flaws.
but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of
fitness for a particular purpose, of reliability or availability, of
accuracy or completeness of responses, of results, of workmanlike
effort, of lack of viruses, and of lack of negligence, all with
regard to the Product, and the provision of or failure to
provide support or other services, information, software, and related
content through the Product or otherwise arising out of the use
of the Product.
Analysis
You agree that Microsoft is to be held above blame and that all
manner of warranties about this software are explicitly removed,
including (in general and broadly understandable terms):
that this software is at all worthwhile and in a commercially marketable form
that this software does something useful
that this software does something that you believe it should, based on the marketing of the
software that this software does not contain viruses
that this software will continue to work (at all)
that this software will give correct answers for valid inputs
that this software was built by capable programmers
that this software was developed and distributed with no negligence on Microsoft's part.
ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR
NON-INFRINGEMENT WITH
REGARD TO THE PRODUCT.
Analysis
Here, by excluding implied covenant quiet enjoyment , the EULA is
removing the user's rights to use the software as they see fit, and
neutralising the right the user has to be left alone in the 'quiet
enjoyment' of the use of this software. The covenant essentially
states that a user has the right to use the software without
interference by the software publisher.
By excluding the the right to quiet possession, the EULA is
removing the user's right to privacy and peaceable usage of this
software. By analogy, someone who is renting a house does possess the
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published in a press release in July 1999, "all users of
Microsoft SQL Server 7, Office 2000 and other Microsoft products that
utilize this type of technology are unencumbered by
Timeline's patents."
Timeline disagreed. The Washington Court of Appeal judgement plumped for
the company. The company reckons that some SQL Server developers could
face bills in the millions of
dollars. The "damages they face may be material to Timeline's
future financial results," Charles Osenbaugh, Timeline's president and
CEO.
(Sources: http://www.theregister.co.uk/content/53/29419.html and http://news.com.com/2100-1001-985359.html)
13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER
Analysis
Regardless of what catastrophic failure or problems arise from this
software, Microsoft will not be held responsible, nor will it be liable
for any damages whatsoever.
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR
Analysis
If you are in business, and errors in Microsoft's software cause you to lose money, you have no legal recourse to relief.
CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR
Analysis
If your business relies of Microsoft's software, which somehow fails,
causing your business (in turn) to stop or fail, you cannot sue
Microsoft.
PERSONAL INJURY,
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FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD
Analysis
If your privacy is lost (or reduced) due to flaws in Microsoft's software, you have no legal recourse for relief.
FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER
Analysis
The EULA seeks that you give the software publisher the freedom to
be negligent, to act in bad faith and to commit otherwise onerous and
unacceptable acts, without the user bringing action against
them.
PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR
IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE
PROVISION OF OR FAILURE
TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND
RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE
OF THE
PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA,
Analysis
You are not guaranteed of any support or any other services relating to this software product, from Microsoft.
EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSOFT OR ANY
SUPPLIER, AND EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Analysis
Regardless of what type of fault, error, omission or bug has caused
the problems, and even if Microsoft had been previously forewarned of
this fault, error, omission or bug within its software,
you are still not able to sue. Further, even if Microsoft
breaches its own contract/warranty with you, you are still not able to
sue.
14. LINKS TO THIRD PARTY SITES. You may link to third party sites through the use of the Product. [...]
15. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages
that you might incur for any reason whatsoever (including, without
limitation, all damages referenced above and
all direct or general damages), the entire liability of Microsoft and
any of its suppliers under any provision of this EULA and your
exclusive remedy for all of the foregoing (except for any
remedy of repair or replacement elected by Microsoft with respect to any breach of the Limited
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Analysis
Microsoft's entire legal liability to you will be the cost you paid for this software, or U.S.$5.00, whichever is greater.
16. U.S. GOVERNMENT LICENSE RIGHTS. All Product provided to the
U.S. Government pursuant to solicitations issued on or after December
1, 1995 is provided with the commercial
license rights and restrictions described elsewhere herein. All Product
provided to the U.S. Government pursuant to solicitations issued prior
to December 1, 1995 is provided with "Restricted
Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
Analysis
There are special provisions made with respect to users who are U.S
federal government staff. This doesn't affect everyone else.
17. APPLICABLE LAW. If you acquired this Product in the United
States, this EULA is governed by the laws of the State of Washington.
If you acquired this Product in Canada, unless expressly
prohibited by local law, this EULA is governed by the laws in force in
the Province of Ontario, Canada; and, in respect of any dispute which
may arise hereunder, you consent to the jurisdiction
of the federal and provincial courts sitting in Toronto, Ontario. If
this Product was acquired outside the United States, then local law may
apply.
Analysis
If you live in North American states or provinces other than
Washington and Ontario, there is extra effort and expense involved in
any form of legal action you may bring to bear against Microsoft.
18. ENTIRE AGREEMENT. This EULA (including any addendum or
amendment to this EULA which is included with the Product) are the
entire agreement between you and Microsoft relating to
the Product and the support services (if any) and they supersede all
prior or contemporaneous oral or written communications, proposals and
representations with respect to the Product or any other
subject matter covered by this EULA. To the extent the terms of any
Microsoft policies or programs for support services conflict with the
terms of this EULA, the terms of this EULA shall control.
Analysis
Regardless of whatever else you may understand of the relationship
or agreement between you and Microsoft, this license over-rides it.
19. The Product is protected by copyright and other intellectual
property laws and treaties. Microsoft or its suppliers own the title,
copyright, and other intellectual property rights in the
Product. The Product is licensed, not sold.
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It is of great importance to understand the significance of
this. Many users who purchase products like this from Microsoft are
under the mis-conception that since they may have paid hundreds or
perhaps thousands of dollars for it, that it must therefore belong to
them, much like a car, chair or clothes do once purchased, or
particularly a book -which can be lent, read by others, quoted from
etc. This is wrong. The software product belongs (totally) to Microsoft,
who allow, at their discretion, your use of the product. Non-compliance
with the product's license may see you lose that
privilege.
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continuing with the concept of applying the same analysis
process to both licenses, we will attempt to paraphrase, in hopefully
simpler terms, the GPL, just as we did the EULA.
GNU GENERAL PUBLIC LICENSE Version 2, June 1991
Copyright (C) 1989, 1991 Free Software Foundation, Inc. 59 Temple Place, Suite 330, Boston, MA 02111-1307 USA
Everyone is permitted to copy and distribute verbatim copies of this license document, but
changing it is not allowed.
Analysis
This GPL differs from the EULA, which does not offer explicit rights to copy the license.
Preamble The licenses for most software are designed to take away your freedom to share and change it. By
contrast, the GNU General Public License is intended to guarantee your
freedom to share and change free software--to make sure the software is
free for all its users. This General Public
License applies to most of the Free Software Foundation's software and
to any other program whose authors commit to using it. (Some other Free
Software Foundation software is covered by
the GNU Library General Public License instead.) You can apply it to your programs, too.
Analysis
This license begins by discussing the freedoms it allocates to
users. Although the GPL says that it 'is intended to guarantee your
freedom to share and change free software', it actually achieves this
by
making guarantees which amount to the right of the software
itself to be unencumbered. User freedoms are an almost inevitable
consequence of this guarantee of freedom for the software.
This is analogous to underwriting the freedom of a country by
defending the freedom of each individual in that country instead of
defending the country as a whole and directly.
The GPL's core intention is to ensure that the software systems released
under its license are allowed to be copied and modified by users, in
perpetuity.
This translates to the fact that once you, the user, acquires any
software licensed under the GPL, you can do pretty much anything you
want with it, as long as you don't have any intention of re-
distributing it to others, at which point, you need to be mindful of the
ongoing prevalence of the GPL over that re-distributed software.
You are therefore free to copy and install this software as often as you like. You are free to reverse-
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When we speak of free software, we are referring to freedom, not
price. Our General Public Licenses are designed to make sure that you
have the freedom to distribute copies of free software
(and charge for this service if you wish), that you receive source code
or can get it if you want it, that you can change the software or use
pieces of it in new free programs; and that you know you
can do these things.
Analysis
As a user of GPL-licensed software are allowed to copy, modify and redistribute this software.
You are able to charge for the service of copying this software source
code. There is no limit to the amount of money you can charge for this
service. The presumption is: as much as the market can
bear.
However, there is no license cost in using this
software. i.e, there is no per-seat or per-computer price. Any price
you may have paid to acquire this software is merely for the
service-component of
delivering the software unto you.
You are able to use parts
of this software within your own software, as long as you intend to
either keep this software 'in-house' or release your modifications to a
wider audience as software licensed
under the GPL.
To protect your rights, we need to make restrictions that forbid anyone to deny you these rights
Analysis
The core restriction in the GPL is that which precludes one party
from preventing another party exercising their rights to copy, modify
and re-distribute the software.
or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you
if you distribute copies of the software, or if you modify it.
Analysis
Under the GPL, the only onus on you, the user, is if you intend on distributing copies of the software, or modifying it.
For example, if you distribute copies of such a program, whether
gratis or for a fee, you must give the recipients all the rights that
you have. You must make sure that they, too, receive or can get
the source code. And you must show them these terms so they know their rights.
Analysis
If you do decide to distribute a software program licensed under the GPL, you must ensure that the
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Also, for each author's protection and ours, we want to make
certain that everyone understands that there is no warranty for this
free software.
Analysis
As there is no charge for the license of this software, there is NO WARRANTY whatsoever.
If the software is modified by someone else and passed on, we
want its recipients to know that what they have is not the original, so
that any problems introduced by others will not reflect on the
original authors' reputations.
Analysis
If you do modify and redistribute this software, you must make it
known that this is the case within the documentation of that software,
bundled with the software.
As much of the emphasis within the Free/Open Source developer
community is placed on individual credentials and the regard given to
high-quality programmers within this community, it is important
that the framework offered by this arrangement protect individual programmer's reputations.
Finally, any free program is threatened constantly by software patents. We wish to avoid the
danger that redistributors of a free program will individually obtain
patent licenses, in effect making the program proprietary. To prevent
this, we have made it clear that any patent must be
licensed for everyone's free use or not licensed at all.
Analysis
The Free/Open Source software community has expressly stated in the
past that software patents are problematic and where-ever possible,
should be avoided. However, if software patents are applied to
software released under the GPL, then the patent should
specifically permit fully-compliant operation of the GPL rights (i,e to
freedom to copy, re-use, re-distribute.)
The precise terms and conditions for copying, distribution and modification follow.
GNU GENERAL PUBLIC LICENSE TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
0. This License applies to any program or other work which contains a notice placed by the
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Analysis
Notes on how to tell if a program is licensed under the terms of the GPL.
Activities other than copying, distribution and modification are not covered by this License; they
are outside its scope. The act of running the Program is not restricted,
and the output from the Program is covered only if its contents
constitute a work based on the Program (independent of
having been made by running the Program). Whether that is true depends on what the Program does.
Analysis
A clear delineation is made on what this license covers and what it
does not. The GPL only covers the copying, modification and
redistribution of software.
This part of the license grants the following rights:
You are free to use (i.e execute the code of) the software in any way you deem necessary.
You are free to run this software on any hardware platform you want.
You are free to run this software on as many computers simultaneously as you want.
You are free to run this software on computers with as many processors as you have available;
You are free to run this software with any other software application, whether that other software
is licensed under the terms of the GPL or not.
1. You may copy and distribute verbatim copies of the Program's
source code as you receive it, in any medium, provided that you
conspicuously and appropriately publish on each copy an
appropriate copyright notice and disclaimer of warranty; keep intact all
the notices that refer to this License and to the absence of any
warranty; and give any other recipients of the Program a
copy of this License along with the Program.
Analysis
You can make as many copies of this software as you want, in whatever format you want.
If you pass the software on to others, you must include the license.
You may charge a fee for the physical act of transferring a copy,
Analysis
You can charge for your time and effort (to whatever extent you believe the market can bare) for the
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2. You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program, and copy and
distribute such modifications or work under the terms of
Section 1 above, provided that you also meet all of these conditions:
Analysis
You can make any changes to this software that you want.
If you decide to redistribute copies of this modified software (to external 3 rd parties), you must abide
by the terms noted above. If you distribute copies of this software to
others within your organisation, then you do not need to release your
code modifications as source code.
a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
Analysis
If you have made changes to the software, you must make clear notice of this within the software.
b) You must cause any work that you distribute or publish, that
in whole or in part contains or is derived from the Program or any part
thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License.
Analysis
If you decide to redistribute copies of this modified software (to
external 3 rd parties), you must make this modified software available
with NO LICENSE FEES.
c) If the modified program normally reads commands interactively when run, you must cause it,
when started running for such interactive use in the most ordinary way,
to print or display an announcement including an appropriate copyright
notice and a notice that there is no warranty (or
else, saying that you provide a warranty) and that users may
redistribute the program under these conditions, and telling the user
how to view a copy of this License. (Exception: if the Program itself
is interactive but does not normally print such an announcement, your
work based on the Program is not required to print an announcement.)
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These requirements apply to the modified work as a whole. If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works
in themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you
distribute the same sections as part of a whole which is a
work based on the Program, the distribution of the whole must be on the
terms of this License, whose permissions for other licensees extend to
the entire whole, and thus to each and every part
regardless of who wrote it.
Analysis
If you have software code which can exist and function separately
to the software which was licensed under the terms of the GPL, then
that software does not need to be licensed under a GPL
license. If, however, you distribute that same separable code
with the GPL software, then this code also falls under the GPL license.
You are thus free to create software code which can run
standalone, and can license this as you wish. If, however, you
integrate this same code and distribute it with GPL software, then that
software
must also be licensed under the GPL.
Thus, it is not the intent of this section to claim rights or contest
your rights to work written entirely by you; rather, the intent is to
exercise the right to control the distribution of derivative or
collective works based on the Program.
Analysis
The stated intention of the GPL is to protect the rights of those
who released their code under the GPL. Care must therefore be exercised
when integrating code which you do not want to make
available as GPL code, with GPL code.
It is advisable that
you seek as much information and perhaps legal advice if you plan on
integrating your software source-codes with GPL software source-codes,
for the purpose of integration to others,
In addition, mere aggregation of another work not based on the
Program with the Program (or with a work based on the Program) on a
volume of a storage or distribution medium does not bring the
other work under the scope of this License.
Analysis
The GPL clearly states that simply bundling your non-GPL code with
GPL software on a disk or other media, does not make your code
available under the terms of the GPL.
3. You may copy and distribute the Program (or a work based on
it, under Section 2) in object code or executable form under the terms
of Sections 1 and 2 above provided that you also do one of the
following:
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a) Accompany it with the complete corresponding machine-readable
source code, which must be distributed under the terms of Sections 1
and 2 above on a medium customarily used for software
interchange; or,
Analysis
As long as you also ensure you bundle the source code for this software, or
b) Accompany it with a written offer, valid for at least three
years, to give any third party, for a charge no more than your cost of
physically performing source distribution, a complete machine-
readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and
2 above on a medium customarily used for software interchange; or,
Analysis
Ensure you supply the recipients of this
compiled/machine-executable code with access to the corresponding
source (i.e programmer-readable) code. You can charge a nominal fee for
this service,
or
c) Accompany it with the information you received as to
the offer to distribute corresponding source code. (This alternative is
allowed only for noncommercial distribution and only if you received
the program in object code or executable form with such an offer, in accord with Subsection b above.)
Analysis
Ensure that the next recipient receives the same information about accessing the source (i.e programmer-readable) code.
The source code for a work means the preferred form of the work
for making modifications to it. For an executable work, complete source
code means all the source code for all modules it contains,
plus any associated interface definition files, plus the scripts used to
control compilation and installation of the executable. However, as a
special exception, the source code distributed need not
include anything that is normally distributed (in either source or
binary form) with the major components (compiler, kernel, and so on) of
the operating system on which the executable runs,
unless that component itself accompanies the executable.
Analysis
This section discusses the types of files that need to be included to ensure that the redistributed source code is compilable.
If distribution of executable or object code is made by offering
access to copy from a designated place, then offering equivalent access
to copy the source code from the same place counts as
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comply with the requirements of the GPL.
4. You may not
copy, modify, sublicense, or distribute the Program except as expressly
provided under this License. Any attempt otherwise to copy, modify,
sublicense or distribute the Program is
void, and will automatically terminate your rights under this License.
However, parties who have received copies, or rights, from you under
this License will not have their licenses terminated so
long as such parties remain in full compliance.
Analysis
The only way that you can copy, modify or distribute this software,
is under the terms described by this license. If you are in breach of
these terms, you forfeit the rights allowed by the GPL. If you
have distributed this software to others, however, they will still retain their rights proscribed by this license.
5. 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. These actions
are prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so,
and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
Analysis
This license is optional. But if you want to copy, modify and
redistribute copies of this software, then accepting this license is
the only option open to you.
6. Each time you redistribute the Program (or any work based on
the Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program
subject to these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
Analysis
If you copy, modify and redistribute any software covered by the GPL, you may not add your own restrictions to this software.
You are not responsible for enforcing compliance by third parties to this License.
Analysis
You are not tasked with being the copyright policeman for this software.
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then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
Analysis
If you are copying, modifying and redistributing copies of this
software, under no circumstances can you void your responsibilities
with respect to the ongoing provisions specified by this license. You
must always ensure that others are allowed to copy, modify and redistribute.
If any portion of this section is held invalid or unenforceable
under any particular circumstance, the balance of the section is
intended to apply and the section as a whole is intended to apply in
other circumstances.
Analysis
A coverall statement to ensure as much of this license applies as is possible.
It is not the purpose of this section to induce you to infringe
any patents or other property right claims or to contest validity of
any such claims; this section has the sole purpose of protecting the
integrity of the free software distribution system, which is implemented
by public license practices. Many people have made generous
contributions to the wide range of software distributed through
that system in reliance on consistent application of that system; it is
up to the author/donor to decide if he or she is willing to distribute
software through any other system and a licensee cannot
impose that choice.
Analysis
A statement indicating that the main thrust of this document is to
ensure the rights of the developers of the software licensed under the
terms of the GPL, and that care must be taken in case of possible
inclusion/contamination of this software with software which infringes on patents.
This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
8. If the distribution and/or use of the Program is restricted in
certain countries either by patents or by copyrighted interfaces, the
original copyright holder who places the Program under this License
may add an explicit geographical distribution limitation excluding those
countries, so that distribution is permitted only in or among countries
not thus excluded. In such case, this License
incorporates the limitation as if written in the body of this License.
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9. The Free Software Foundation may publish revised and/or new
versions of the General Public License from time to time. Such new
versions will be similar in spirit to the present version, but
may differ in detail to address new problems or concerns.
Analysis
The body which created the GPL retains the right to create new
versions of this agreement. They do, however, state that they will try
and retain the general nature of this current document.
This is particularly important from a long-term
business-planning perspective, as the users of this software will know
that the terms of new versions of this software, covered by an updated
license,
will follow very similar lines to this version.
Each version is given a distinguishing version number. If the
Program specifies a version number of this License which applies to it
and "any later version", you have the option of following the
terms and conditions either of that version or of any later version
published by the Free Software Foundation. If the Program does not
specify a version number of this License, you may choose any
version ever published by the Free Software Foundation.
Analysis
You can adopt either the version of the license which this software is released under, or a new version.
This gives you, the user, some flexibility in licensing options.
10. If you wish to incorporate parts of the Program into other free
programs whose distribution conditions are different, write to the
author to ask for permission. For software which is
copyrighted by the Free Software Foundation, write to the Free Software
Foundation; we sometimes make exceptions for this. Our decision will be
guided by the two goals of preserving the
free status of all derivatives of our free software and of promoting the sharing and reuse of software generally.
Analysis
If you are a programmer who wants to mix-n-match code from
Free/Open Source Software which has been released under different
licenses, you should seek permission from the author of the
software you want to incorporate.
NO WARRANTY 11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY
FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
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EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS
AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF
ANY KIND,
EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU.
Analysis
You agree that author(s) of this software is(are) to be held above
blame and that all manner of warranties about this software are
explicitly removed, including:
that this software is at all worthwhile and in a commercially marketable form
that this software does something useful
that this software does something that you believe it should, based on the marketing of the
software
Further, all risks involved in operating this software are bourne by you, the user.
SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
Analysis
If the software breaks, you will need to pay any expenses, should you wish to do so, to get it working again.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN
WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY
AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU
FOR
DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE
PROGRAM (INCLUDING
BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR
LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO
OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Analysis
Regardless of what catastrophic failure or problems arise from this
software, author(s) of this software will not be held responsible, nor
will he(they) be liable for any damages whatsoever.
If you lose your data, or if the program released under the GPL
fails to inter-operate with any other program, then the author(s) of
this software will not be held responsible.
Regardless of what type of fault, error, omission or bug has caused the
problems, and even if then the author(s) had been previously forewarned
of this fault, error, omission or bug within its software,
you are still not able to sue.
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Library General Public License instead of this License.
Analysis
If you want to create software which you want other, non Free/Open
Source (i.e proprietary) software to incorporate without that
proprietary software then becoming GPL'd itself, you should
use the Library GPL, which is specifically designed for this purpose.
An example of when and how this would be used may be of use here. Under
Linux, many of the libraries are released as LGPL software, which
allows non-Open Source software, such as IBM's
Sybase SQL Server, Oracle and Lotus Domino etc. to be compiled
and linked to these programming libraries. This software then can
remain as proprietary, non-Open Source software, even though it
directly links to GPL software.
Distribution and Use
This document was created by Cybersource Pty. Ltd. You are free
to re distribute it as widely as you wish, as long as it remains
intact. You are also free to use, within your works, small segments of
the
document under a fair use clause.
Disclaimer
The information contained herein represents Cybersource s
initial commentary and analysis and not a legal briefing, and has been
obtained from sources believed to be reliable. Positions taken are
subject to change as more information becomes available and
further analysis is undertaken. Cybersource disclaims all warranties as
to the accuracy, completeness or adequacy of the
information. Cybersource shall have no liability for errors, omissions
or inadequacies in the information contained herein or for
interpretations thereof.
Acknowledgments
The author gratefully acknowledges the follow contributors to
this article. He also restates that any omissions or errors are his
alone: Leon Brooks <leon@cyberknights.com.au>, Conrad Parker
<conrad@vergenet.net>, Jacinta Richardson
<jarich@perltraining.com.au>, Richard Keech
<rkeech@ender.keech.cx>, Steve White
<wcl@computerlaw.com.au>, Tim O'Leary
<oleary@alphalink.com.au>, Stuart Cunningham <stuartc@rd.bbc.co.uk>.
Comparing the GPL to the EULA Modified: 2003-04-24 Page 30 of 30
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