W. Yip weng at yours.com
Fri Mar 24 14:38:08 UTC 2000

On Thu, 23 Mar 2000 20:21:53 -0500, "Rod Dixon, J.D., LL.M."
<rod at cyberspaces.org> wrote:
>In a word, the answer to your question is NO.
>I am sure you have heard of "UCITA" by now. The purpose of this proposed
>uniform legislation is to set the ground rules for contracts involving
>information transactions. 

Thank you for the reply. I am aware of UCITA, though I cannot say I have a
comprehensive understanding of it. From what you mentioned, I do not regard
its regulation of contracts as relevant to my question, because I am
questioning the existence of a contract in every case of a license, while
you have presupposed such existence of contract.

>In the software world (and some others) the term
>license refers to a type of contract.

I wish to query this. Might I say that it is NOT so in every case? For
purposes of law a license can be valid notwithstanding (i) contractual
relations or (ii) copyright subsistence. A license can exist independently
of these two.[1]

In the context of software, it is almost impossible to lawfully use it
without there being a license expressly permitting the act of copying. This
is because this act of copying is one of the exclusive rights guaranteed to
the copyright holder (author).[2]

In the context of GPL, I wish to question whether there is a contract in
every case. The OSD s.7 'Distribution of License' stresses that no
subsequent execution of additional license is required for redistribution.
This implies that the OSS License is 'automatic'. This gives the likelihood
that in many cases a contract is PRECLUDED from the licensing mechanism.
For instance, if I were to download RedHat from FTP, and then install it
after reading and accepting the 'click wrap license' involved, would there
be a contract in such a case? I doubt it.

There are differences as between jurisdictions regarding contractual
analyses. In UK, it is particularly difficult to regard the GPL
REdistribution licenses as being contractual, this is because of the
requirement of consideration for a contract to exist.

> Consequently, you CAN violate the
>terms of a license and doing so is often referred to as a breach of

Agreed, assuming that a contract is present. Under this head, the remedy
would be one of (punitive?) damages for breach of contract. Again, I doubt
whether 'violation of license terms' would be properly employed in court,
because the issue in question is one of  'breach of contract'. 

This may appear as nitpicking, but I think this semantic distinction is
worthwhile, given the obvious difference between (i) the license and (ii)
the contract.

>The points about permissive copyright and other such... are not relevant to
>the legal significance of the term *license*

I stressed the license being permissive because this directly relates to
its being a personal interest. Thus, a license is not within the legal
definition of a 'proprietary interest' [4], unlike copyright. IOW, a
license acts 'in personam', instead of 'in rem'.

In brief, the attitude of OSI is that the license generates 'rights
attached to the program' [5]. From a strictly legal perspective, this seems
incorrect because a license attaches rights to the person (licensee) not
the property (computer program). Not even an exclusive license gives rise
to a proprietary claim, much less a non-exclusive libetarian license like
the GPL.

This question of personal/proprietary is probably the fundamental issue to
be resolved if and when a dispute involving open source goes to court. The
second issue to be resolved I think is regards the position of contract in
relation to the 'automatic' Open source license.

[1] pg. 310 Garnett, K., James, J. and Davies, G. (eds) (1999) "Copinger
and Skone James on Copyright 14th Edition", Sweet and Maxwell

[2] Under UK Copyright law this is governed by s. 16 Copyright, Designs and
Patents Act 1988

[3] "The license must be automatic, no signature required" Perens, B.
(1999) "The Open Source Definition" in Open Sources: Voices from the Open
Source Revolution, O'Reilly and Assoc.

[4]. {I mean 'proprietary' in a legal sense, not the same 'proprietary'
defined in GPL or in various OSS writings which seem to equate it with
'anti-social', 'restrictive', 'abusive' and 'microsoft'!}

[5] cf. s.7 and s. 8 of Open Source Definition

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