Limits of Licenses

David Johnson david at
Mon Mar 27 06:41:59 UTC 2000

On Sun, 26 Mar 2000, Justin Wells wrote:

> What reason is there to believe that free software licenses are valid at 
> all? If they really are contracts of adhesion, isn't that going to get 
> them struck down right there? I thought there was some precedent for 
> throwing out a contract, even if it's reasonable, just on the grounds 
> that it was a contract of adhesion--and if you have even one objectionable
> term, then you get into hot water. 

Not being a lawyer, I have to resort to the principles of logic :-)

If copyright law does not give you rights A, B and C, then you do not
have them unless the copyright holder gives them to you. All OSS
licenses operate pretty much under this mode. But as I understand it, a
license needs to be a contract of some sort before it can take *away*
any rights that you normally have under copyright law. For example,
there must be a legal agreement of some kind before a license can
forbid you to make archival copies. And I don't care what the judges
say, tearing off some plastic shrink wrap doesn't count as an agreement.

You don't buy paperback books with licenses on their inside covers that
say "you agree not to lend this to your friend", but somehow this seems
perfectly normal when the same is published through electronic means. I
still have a soft spot in my heart for the old Borland license that
basically said "make as many archival copies as you want, install it
wherever you want, lend it out even, just don't have it executing on
more than one computer at a time". Just like a book, in other words.

> I'm not a lawyer so this is a sincere question--I don't know the
> answer and I don't know if what I'm saying makes any legal sense.

With regards to intellectual property, the law is making less and less
sense as time goes on. If UCITA gets passed in my state, I'll put all
of my own works under public domain.

David Johnson...

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