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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":
> >
> > http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
> > (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'").

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.

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

Sort of. :-)

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
("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).

http://pacer.psc.uscourts.gov/documents/natsuit.pdf

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

regards,
alexander.

--
"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte


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