Seth David Schoen schoen at loyalty.org
Fri Mar 24 22:41:35 UTC 2000

John Cowan writes:

> "W. Yip" wrote:
> > 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.
> IANAL, but I agree with you.  The GNU GPL and other open source "licenses"
> (whether that term is justly applied to them is another matter) are in fact
> conditional non-exclusive transfers of copyright.  They are not contracts not only
> for technical reasons (lack of consideration, etc.) but more fundamentally
> because there is no agreement, no meeting of the minds.  The copyright
> owner grants certain of his otherwise exclusive rights to you, conditional
> on your doing such-and-such and refraining from such-and-such.  Provided
> the conditions are met, you have those rights whether you agree or not.

This is the GPL's theory ("you are not required to accept this licensed,
because you have not signed it...").

A consequence of this interpretation is that it should not be possible to
sue any public license violator for anything _other_ than copyright
infringement (because there was no opportunity for the licensee to
acquire any contractual obligations).

Suppose I write some program and publish it with a public license which
says that anyone may use it, but that, by _distributing_ it, a distributor
implies agreement with my distribution-permission conditions, which are
"paying $1,000,000 into a fund for bearded programmers, to be established
by the Bearded Programmer Foundation".  Now somebody distributes the
program, but does not pay the BPF.

I have a cause of action against the distributor for copyright
infringement (since under copyright law, "nothing else", as the GPL says,
grants permission for copying, and it is forbidden by default).  But
I can't sue to recover the $1,000,000 for the BPF, unless there was
actually a contract there.

Your argument, and a popular argument among people who have looked this
sort of thing over, seems to be that, even though some public licenses
purport to be contracts, or to create obligations for people who
modify or distribute software, they are not actually contracts -- just
conditional permission grants under copyright law, which can either be
accepted or ignored.  The result of this is either a copyright violation
or no copyright violation, but in any case no "license violation".

Seth David Schoen <schoen at loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5

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