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Re: Open source licenses are /actually/ contracts?!?

From: Alexander Terekhov
Subject: Re: Open source licenses are /actually/ contracts?!?
Date: Tue, 28 Aug 2007 15:25:25 +0200

Tim Tyler wrote:
> Alexander Terekhov wrote:
> > Tim Tyler wrote:
> > [...]
> >> You have no right to redistribute the software - with
> >> or without the source code - under copyright law, unless
> >> such freedom is granted by a license.
> >
> > Stop being such an idiot, Tyler. From "Understanding Open Source and
> > Free Software Licensing":
> >
> >
> > (Chapter 6: Legal Impacts of Open Source and Free Software Licensing)
> [snip]
> It seems to agree that open source licenses - giving the example
> of the MIT license - are unenforcable by contract law:
> ``Nonetheless, the absence of affirmative consent (such as
>    clicking on a text box as required by the “clickwrap” license)
>    is troubling to courts, and correctly so. It seems unfair to
>    enforce terms of a contract to which one of the parties has
>    done nothing to positively affirm.
>    This issue has obvious application to the open source and
>    free software licenses already discussed. Staying with the
>    MIT License, say, for example, that an ordinary user comes
>    across a piece of code that is subject to this license.
>    The user takes the code and uses it on his personal computer.
>    The user incorporates the code into a program that he is
>    writing. The user distributes the program, either for profit
>    or not. At no point has the user taken any affirmative,
>    symbolic action that would indicate his consent to the terms
>    of the license that is comparable to the act of signing a
>    contract.''

In the case of open source and free software licenses, the "user" manifests 
assent by simply taking action(s) reserved to copyright owners. 

> That's why the open source licenses do not rely on contract law,

[... more Moglen's and PJ's bullshit ...]

An intellectual property license is a contract. In re: Aimster Copyright 
Litigation, 334 F.3d 643, 644 (7th Cir. 2003) ("If a breach of contract (and a 
copyright license is just a type of contract) . . . ");  see also McCoy v. 
Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) ("Whether express 
or implied, a license is a contract 'governed by ordinary principles of state 
contract law'").

"A license is governed by the laws of contract."

But feel free to believe that the entire US federal judiciary is just a bunch 
of narrow-minded fools in denial of Moglen's genius and that they all should go 
and keep taking SFLC's seminars until they finally get his "not a contract" 

> Copyright violation: preliminary injunction;
> Contract violation: no preliminary injunction.

Sort of. :-)
("With respect to the General Public License...")

The standard for PI under copyright infringement claim includes presumption of 
irreparable harm. The judge didn't apply it (and used a contract standard 
instead). Note also "portion breach of contract claim" and "didn't cure the 
breach" wording (one just can't "cure" a copyright violation). Finally, that 
decision is tagged as "Nature of Suit: 190" and that's neither 820/840 nor 
190/820/840 (all three).

190 is CONTRACT/Other Contract
820 is PROPERTY RIGHTS/Copyrights
840 is PROPERTY RIGHTS/Trademark


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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