Rod Dixon, J.D., LL.M. rod at cyberspaces.org
Sat Mar 25 02:46:39 UTC 2000

> -----Original Message-----
> From: cowan at mail.reutershealth.com
> [mailto:cowan at mail.reutershealth.com]On Behalf Of John Cowan
> Sent: Friday, March 24, 2000 5:35 PM
> To: W. Yip
> Cc: license-discuss at opensource.org
> Subject: Re: "Violation"
> "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.
No. You may use the work under the terms of the GPL or not at all. As you
correctly note the copyright is an exclusive right of the copyright holder.
This means you (i.e., the User) have NO rights UNLESS you comply with the
terms  of the license. Now, is it getting clearer why the license is a
contract. (BTW, there is an exception to what I just said, but it is
contained in the Copyright Act and applies to all copyrightable works
regardless of whether a license is used to distribute the work).
> --
> Schlingt dreifach einen Kreis um dies! || John Cowan
> <jcowan at reutershealth.com>
> Schliesst euer Aug vor heiliger Schau,  || http://www.reutershealth.com
> Denn er genoss vom Honig-Tau,           || http://www.ccil.org/~cowan
> Und trank die Milch vom Paradies.            -- Coleridge (tr. Politzer)

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