[spr93]

a few concepts you need to start: copyright is a right to exclude. copyright does not arise from your agreement. the copyright attaches to the protected expression.

analogies are dangerous, but these concepts are intuitive if you think in terms of real property.

right to exclude: you have the right to exclude most people, under most circumstances, from your house.

doesn't arise from agreement: you can let joe into your house without an agreement. you can also kick him out whenever you want, unless you and joe made an agreement that limits your right to exclude him (or a legal exception applies).

in our analogy, the agreement might be a lease. (btw, the lease will limit the owner's right to exclude, and it will probably give both sides some non-property--i.e., contractual--rights. telling the two kinds of rights apart is the subject of the article.)

there are exceptions, just like there are exceptions in copyright. you know the names of some of them, like fair use. similarly, there are rights for people who don't have a formal lease, and there are rights that exist even if a lease purports to reject them.

but what you call the "default position" is the same: the property owner has the right to exclude others.

exists wherever the property exists: the right to exclude someone from real property attaches to the land and stays with it. similarly, copyright attaches to the protected expression; the copyright owner's right to exclude is already attached to the copy you have.

now you can see why you don't get to do whatever you want with a copy if you don't have an agreement: the copyright already governs your copy. it lets the copyright owner exclude you. if you want protection against that exclusion, then you need to agree to a license.

that is, of course, a gross oversimplification. for example, you emphasize "copy", but the copyright owner has other rights, such as the right to prepare derivative works, the right to distribute the work, and the right of public display. the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work, and that in itself would been a copyright violation. on the other hand, just having a copy isn't a copyright violation because "having" isn't a protected right. details like that rarely matter though. i only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.

[dataflow]

Thanks for the info. To reply to your points:

> I only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.

To be clear, I was never claiming this is legal. I figured well enough that it probably isn't. My question was, what is the legal basis for it.

> copyright is a right to exclude

Note the comment I replied to wasn't talking about copyright (at least not explicitly). It claimed there is no right to use software without agreeing to its EULA. The entire question here seems to be about whether an EULA is a contract or a (copyright?) license, so that itself isn't clear. But in either case, you presumably have the right to at least copy the work as-is, so I'm assuming no copyright violation is happening at least up to that point.

> the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work

Your rebuttal hinges on the implementation of the bypass mechanism. I'm trying to get to the heart of the matter, and I don't get the impression it should depend on that (but do correct me if I'm wrong). If you need a concrete implementation to discuss the crux of it, consider this: you can just as well imagine bypassing some program's agreement by modifying the environment around the program, and thus not actually creating a derivative work. (In the simplest case, imagine a naive program that just checks to see if a "is_licensed=true" exists in some config file, and imagine the user setting that manually to bypass the check. The program stays intact.)

I think the heart of the question here is: if you know the intention was to make you agree to the license, but you never agreed to do that, and you managed to get the program to get past that point... what exactly did you violate? It certainly doesn't seem like you violated copyright, given you had every right to copy the work. And it doesn't seem wasn't any contract you were bound by - was there? So when/why is that (not) legal?