Rod Dixon, J.D., LL.M. rod at cyberspaces.org
Fri Mar 24 17:55:08 UTC 2000

> -----Original Message-----
> From: W. Yip [mailto:weng at yours.com]
> Sent: Friday, March 24, 2000 9:38 AM
> To: license-discuss at opensource.org
> Subject: Re: "Violation"
> 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.
It will not only be relevant to your question, it will be dispositive, if
enacted by all 50 states (perhaps so even if not). Let me know if it is
unclear why.

> >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]
Well, a license certainly exists independent of copyright. There is a
fundamental misunderstanding here. The law of copyright sets default rules
for copyright holders. Licenses are not required. Software developers like
Microsoft imbued mantra-like qualities to the phrase: "this software is
licensed, not sold." Apparently, these developers never really had much
confidence in what they claimed so now we have UCITA. Nonetheless, the law
of copyright grants  copyright holders  the right to sell copies of their
software FULLY protected by copyright (ESPECIALLY IF YOU FILE A FEDERAL
REGISTRATION) without the need of a license. Why, then, are licenses used,
you may ask? I suspect the answer has a number of reasons, but the primary
reason is that a license is a legally enforceable way to ADD limits on the
use of a copyright holders work that are far beyond the scopeof copyright.
Take a look at almost any EULA and you should notie that the astounding
limitations included in the license have little or nothing to do with the
rights protected under the Copyright Act. BTW, I am not saying that this is
necessarily improper. I am saying, however, that the connection between the
limitations imposed in many software licenses and the law of copyright is
fairly tenuous.

> 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.
Why do you doubt it? You just said you accepted the terms of the license by
clicking and downloading. What else should be necessary to manifest your
assent to the agreement? Certainly, if clicking is insufficient, we have
VERY BIG problem to overcome in e-commerce. I do not think you will find
much support for your position. A distinct question may arise, which you
have not raised yet, concerning how a user may escape the terms of the
license if the software that is downloaded does not function in the manner
you thought it would and you have suffered damages as a result. (More on
that later, perhaps?)
> 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.

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

I think I understand your preference for a distinction between the terms.
The *problem* is in the  United States, a contract is a 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'.
Be careful. You are not using these terms precisely as they are meant to be
used...even under UK law.
> 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.
As I have stated, the latter question is no longer in dispute. As to the
former question, I do not understand why you deem this a fundamental
question. I think you are slightly confused about some of the basic
principles of contract law. Try this: if you rent an apartment, the license
agreement you may sign sets forth limitations on your use of the apartment.
The apartment is a form of property. Software is a form of property. In this
respect, a license is immune to your personal/propreitary distinction (which
I think you actually mean personal versus thing/property).

Rod Dixon, J.D., LL.M.
rod at cyberspaces.org

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