The position RMS takes...

Rod Dixon, J.D., LL.M. rod at
Wed Mar 29 02:07:57 UTC 2000

> -----Original Message-----
> From: W. Yip [mailto:weng at]
> On Tue, 28 Mar 2000 13:59:35 -0500, John Cowan <jcowan at>
> wrote:
> >"W. Yip" wrote:
> >> 1) The (i) nature and (ii) extent of the terms/permissions in
> OSS licenses.
> >> OSS Licenses are different from conventional licenses in that they
> >> (i) place *no* limits on the copying, and (ii) regulate/impose rules on
> >> subsequent sublicenses by the licensee and (iii) seem to offer
> permissions
> >> to *anyone* [unilaterally?].
> >I think that (ii) conventional licenses do regulate subsequent
> sublicenses: they
> >forbid them.
> But what is the nature of this regulation? Is it a contractual obligation
> or is it a condition precedent for the license permission?
> Please correct me if I am wrong, but I have the impression that only one
> who owns the copyright can issue a license, hence in the case of
> conventional licenses, the licensee cannot sublicense without express
> permission from the licensor, since the licensee does not own the
> copyright?
> My primary difficulty with licenses is due to my understanding of it in
> different branches of the law. The license *in general* is very different
> from the license *in software*. In Land Law, for instance, the license can
> be contractual (eg. renting an apartment), bare (eg. invitation to a house
> party) or attached to a chose in action (eg. right to gather wood). But
> such licenses have very different terms from a software license, largely
> because these licenses deal with something *tangible*, unlike
> software that
> is *intangible*.
> You thus see why I argue for software licenses being recognised as
> something altogether different. I do nto regard licensing to be an
> appropriate mechanism for software protection at all. While it is common
> for academics [such as Pam Samuelson]to attack copyright as inappropriate
> for protecting software, few have questioned the notion of a license as
> being appropriate as such.

I agree. Although these licenses ARE contracts, a copyright license is a
rather special kind of license. Having said that, I am not sure why you have
a problem with them. For my part, I agree with Samuelson. In my own writings
on I argue that copyright is not a healthy legal regime for software, but I
also indicate that copyright sets the default rules better than contract law
because Congress can promote a certain public policy by amending the
Copyright Act. Contract law is essentially private law less amenable to
public policy. So, if we are force to choose between to areas of the law, I
go with copyright, generally. In the area of software, the analysis often
requires a different result.

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

More information about the License-discuss mailing list