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

[Tim Tyler]

Alexander Terekhov wrote:
> Tim Tyler wrote:

Re: http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
    (Chapter 6: Legal Impacts of Open Source and Free Software Licensing)

> >  ``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.

They most certainly do not!

*If* the user agreed to a contract by simply copying,
the world would be full of court cases where
SlimeSoft had included in the small print of its
license agreement:

"And by the act of copying this software, you hereby
 agree to sell all your worldly goods and deposit the
 proceeds in swiss bank account #xxxxxxxx."

Users do not agree to *anything* by the act of
copying something.  The worst that can happen
is that they can subsequently be sued for copyright
violation - since the user can simply claim that they
never bothered to read the license.  Since copyright
violation is such a frequently-performed crime, the
remedies are usually limited to something rather less
than "all your worldly goods" - which is what might
be on the table if they had /actually/ entered into
a binding contract.
--
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