Subject: VNC licencing questions
From: "Brent Frère" <[email-masked]>
To: [email-masked]
Cc: [email-masked]
Date: Tue, 26 Oct 2004 14:04:13 -0000

I'm a long-term user of free software, Linux Marketing Manager for Luxembourg
and met RMS recently. I already gave conferences on free software
(http://BFrere.net/central) among others.

I'm long-term user of VNC, which was developped initially by AT&T, and released
to the community under the GPL. Recently, I noticied on http://www.realvnc.com
that a european-based company was selling derivative work from VNC called "VNC
Enterprise Edition" under a licence that is all but no GPL nor free software
spirit compliant:

============================================================================
VNC VIEWER ENTERPRISE EDITION END USER LICENCE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. IN ORDER TO USE THE VNC VIEWER ENTERPRISE
EDITION SOFTWARE (“THE SOFTWARE”), YOU MUST FIRST ACCEPT THE TERMS AND
CONDITIONS OF THIS AGREEMENT.  BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU
ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE THEN
DO NOT USE THE SOFTWARE.  BY USING ANY UPDATED VERSION OF THE SOFTWARE WHICH MAY
BE MADE AVAILABLE, YOU ACCEPT THAT THE TERMS OF THIS AGREEMENT APPLY TO SUCH
UPDATED SOFTWARE.

In this Agreement “Host” means the computer on which the Software is to be
installed.

The Software is to be used in conjunction with at least one licensed copy of VNC
Server Enterprise Edition or of any other RealVNC Server product explicitly
stated to qualify for use with the Software (“the Server”).

1.	Intellectual Property Rights
The Software, its structure and algorithms, and the Information are protected by
copyright and other intellectual property laws, and all intellectual property
rights in them belong to RealVNC Limited (“RealVNC”), or are licensed to it. 
You may not reproduce, publish, transmit, modify, create derivative works from,
or publicly display the Software or part thereof.  Copying or storing or using
the Software other than as permitted in Clause 2 is expressly prohibited unless
you obtain prior written permission from RealVNC.
2.	Permitted and Prohibited Uses
2.1	During the term of this Agreement and as long as you comply with the terms
of this agreement, you may use the Software for your personal use or for the
internal use of your business only with the Server.  You are expressly
prohibited from distributing the Software in any format, in whole or in part,
for sale, or for commercial use or for any unlawful purpose.
2.2	You may not rent, lease or otherwise transfer the Software or allow it to be
copied.  Unless permitted by law, you may not reverse engineer, decompile or
disassemble the Software.
3.	Limited Warranty
3.1	RealVNC warrants to the original licensee that the Software will perform
substantially in accordance with any documentation provided for it for 90 days
following first use when used on Hosts meeting the minimum hardware and software
requirements specified on the RealVNC website 
3.2	This limited Warranty applies only if any problem is reported to RealVNC
during the above warranty period.  It is void if the failure of the Software is
the result of accident, abuse, misapplication or inappropriate use of the
Software or use with Hosts not meeting the minimum hardware and software
requirements specified on the RealVNC website.
3.3	If the Software does not perform according to the above warranty, then you
must make a warranty claim in writing to RealVNC and your exclusive remedy will
be for RealVNC to replace the Software.
4.	Limitation on Liability
TO THE EXTENT PERMITTED BY LAW, REALVNC DISCLAIMS ALL WARRANTIES ON THE
SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND
FITNESS FOR PARTICULAR PURPOSE.  
TO THE EXTENT PERMITTED BY LAW REALVNC SHALL NOT BE LIABLE FOR ANY DIRECT,
CONSEQUENTIAL INDIRECT OR INCIDENTAL LOSS OR DAMAGES WHATSOEVER INCLUDING LOST
PROFITS OR SAVINGS ARISING OUT OF THE USE OF THE SOFTWARE, RELIANCE ON THE DATA
PRODUCED OR INABILITY TO USE THE SOFTWARE (INCLUDING LOSS OR DAMAGE TO YOUR (OR
ANY OTHER PERSON’S) DATA OR COMPUTER PROGRAMS)  EVEN IF REALVNC HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.  
NOTHING IN THIS AGREEMENT LIMITS LIABILITY FOR DEATH OR PERSONAL INJURY ARISING
FROM A PARTY’S NEGLIGENCE OR FROM FRAUDULENT MISREPRESENTATION ON THE PART OF A
PARTY.
5.	Export Control
The United States and other countries control the export of Software and
information. You are responsible for compliance with the laws of your local
jurisdiction regarding the import, export or re-export of the Software, and
agree to comply with such restrictions and not to export or re-export the
Software where this is prohibited.  By downloading the Software, you are
agreeing that you are not a person or entity to which such export is prohibited.
RealVNC is United Kingdom Limited company.
6.	Term and Termination
This licence shall continue in force unless and until it is terminated by
RealVNC by e-mail notice to you, if it reasonably believes that you have
breached a material term of this Agreement.
In the case above, you must delete and destroy all copies of the Software in
your possession and control and overwrite any electronic memory or storage
locations containing the Software.
7.	General Terms
7.1	The construction, validity and performance of this Agreement shall be
governed in all respects by English law, and the Parties agree to submit to the
non- exclusive jurisdiction of the English courts.
7.2	If any provision of this agreement is found to be invalid by any court
having competent jurisdiction, the invalidity of such provision shall not affect
the validity of the remaining provisions of this agreement, which shall remain
in full force and effect.
7.3	Despite anything else contained in this Agreement, neither party will be
liable for any delay in performing its obligations under this Agreement if that
delay is caused by circumstances beyond its reasonable control (including,
without limitation, any delay caused by an act or omission of the other party)
and the party affected will be entitled to a reasonable extension of time for
the performance of its obligations.
7.4	No waiver of any term of this agreement shall be deemed a further or
continuing waiver of such term or any other term.
7.5	You may not assign, subcontract, sublicense or otherwise transfer any of
your rights or obligations under this Agreement.
7.6	This agreement constitutes the entire agreement between you and RealVNC.  
============================================================================

I'd like to know if this company is allowed or no to do this, how it can be
possible to so legally "proprietarise" free software, and if it's not legal, how
to struggle against it or what the FSF can do against this ?

Thank you for your answer, that will be forwarded to numerous interest
mailing-lists.

-- 
--
Brent Frère

Private e-mail:  [email-masked]

Postal address: 5, rue de Mamer
                L-8280 Kehlen
                Grand-Duchy of Luxembourg
                European Union

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URL:    http://BFrere.net