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

[Tim Tyler]

Alexander Terekhov wrote:

> 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'").
>
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fed&%20navby=case&no=991431
>
> "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" theory.

Users can argue that they never agreed to the terms of any
license - and normally the copyright holder cannot prove otherwise.

If you want to view licenses as a type of contract, they are
a special type of contract where there is usually no evidence
that one party has signed or otherwise agreed to the terms -
and they can always use that in their defense if they need to.

There are many other differences from a regular contract - many of
them to do with the extent of damages that may be awarded.
--
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