RE: Bitkeeper

David Schwartz
2003-07-18T20:54:51Z

> Our license states that you can't use BK if you are developing a similar
> system, i.e., a clone. Without using BK it's impossible to reverse
> engineer BK to create the clone. So your message seems to be saying
> "it would be appropriate at this point to violate the BitKeeper license
> in order to write a free client which talks with BitKeeper".

> Larry McVoy lm at bitmover.com

My understanding of the relevant case law in the United States is that
these types of restrictions are not allowed under copyright law itself.
They've only been upheld when they're part of a sale contract. You can
certainly argue that a click to an 'I Agree' link constitutes acceptance of
a sale contract. But if someone sits down at a friend's computer that
happens to have BK on it, or finds a copy of BK on a CD someone left at the
lab, you would have a hard time arguing that they agreed to this contract.

See, for example, ProCD v. Zeidenberg:

"Copyright law forbids duplication, public performance, and so on, unless
the person wishing to copy or perform the work gets permission; silence
means a ban on copying. A copyright is a right against the world. Contracts,
by contrast, generally affect only their parties; strangers may do as they
please, so contracts do not create "exclusive rights." Someone who found a
copy of SelectPhone(TM) on the street would not be affected by the
shrinkwrap license - though the federal copyright laws of their own force
would limit the finder's ability to copy or transmit the application
program."

IANAL, and in any event, I don't think any court would look fondly on
someone who deliberately contrived a method to claim they're not subject to
the license.

DS