Eiffel Forum License

[Rod Dixon, J.D., LL.M.]

These issues are not simple; even a lawyer must consider them carefully. I
understand the confusion. I hope I do not add to it.

Actually, this is an issue that keeps coming up on this list and elsewhere.
First, the easy part, a license IS a contractual obligation. No disputing
that issue. It is basic legal point.

As I see it, there really are two questions being asked: 1)what is the legal
basis of a software license? and 2)Is the GPL legally enforceable?

Applying U.S. law, the answer to the first question is a software license
rests on both copyright law AND contract law. The answer is complex, but I
will be brief. The Copyright Act requires the use of a license in some
instances, but most software licenses are not based on that requirement.
Instead, many mass market software licenses are intended to impose
restrictions on users of software that have nothing to do with copyright.
Since these restrictions are outside of the scope of copyright, software
developers must rely upon another body of law (other than copyright)  to
enforce these restrictions, if a user violates the license; that body of law
is contract law. It so happens that when a user violates a software license
provision, they often, if not always, also infringe the developer's
copyright. Consequently, the developer/copyright holder is able to file suit
for breach of contract and copyright infringement. As a practical matter,
the remedies available for copyright infringement (which also gets you into
Federal court) are so substantial they are more than sufficient in most
cases.

Having said all that, I should note that there is a cloud over some software
licenses (click wrap and shrink wrap, in particular...but you could probably
add GPL). Many law scholars appropriately question the extent to which these
licenses are really enforceable. At any rate, some courts have enforced
shrink wrap licenses and UCITA was drafted to clear up any questions
remaining on this matter (whether UCITA will be successful remains to be
seen, but there is a strong lobby of developers and other copyright  holders
supporting it). BTW, I think shrink wrap licensing was a dubious and cynical
tool used by software developers/distributors to expand their "rights", but
the reality is that those licenses are now with us to stay.

 2)Is the GPL legally enforceable?
  Even if Micro$oft can lawfully enforce its software licenses as a  amtter
of contract law and copyright, the  question remains whether the GPL (or a
public license, in general) is enforceable.

I think GPLs are enforceable, IF (...big IF...) they are drafted correctly.
Some people think some GPLs lack consideration. The issue of enforceability
is critical for GPLs since, unlike traditional software licenses, public
licenses are fairly permissive on copyright. In this regard, the copyright
holder may find it difficult to claim copyright infringement. The copyrights
are often all granted. He or she will need to rely on the license and claim
breach of contract. This is particularly true when a public license does not
contain a copyleft provision, which, actually, quite cleverly safeguards the
copyright claim. (Notice, I have not complicated this further with UCITA,
but surely that problem will come to the open source community soon.)

I hope this helps.

Rod




___________________________________
Rod Dixon
Visiting Assistant Professor of Law
Rutgers University School of Law - Camden
www.cyberspaces.org
rod at cyberspaces.org

Chief Counsel
FreeBuyers Net, LLC
www.freebuyersnet.com
dixon at freebuyersnet.com



> -----Original Message-----
> From: Rick Moen [mailto:rick at linuxmafia.com]
> Sent: Monday, May 01, 2000 12:05 AM
> To: Rod Dixon, J.D., LL.M.
> Cc: license-discuss at opensource.org
> Subject: Re: Eiffel Forum License
>
>
> Quoting Rod Dixon, J.D., LL.M. (rod at cyberspaces.org):
>
> > Someone, I have forgotten who, sorry, made an interesting
> comment about the
> > enforceability of GPLs, generally. I agree that it is an open question
> > whether a court would enforce some public licenses. If a license lacks
> > consideration, it's enforceability is dubious and some developers may
> > violate the terms of the license knowing that the copyright holder has
> > little chance of prevailing in court.
>
> I note Patrick Doyle's recent comments.
>
> Is consideration relevant outside contract law?  It's always been my
> understanding that free software licences purport to be a transfer of
> copyright, not a contract.
>
> You're the guy whose name has those initials trailing after it; what are
> we missing, here?  ;->
>
> --
> Cheers,              "By reading this sentence, you agree to be
> bound by the
> Rick Moen             terms of the Internet Protocol, version 4,
> or, at your
> rick (at) linuxmafia.com   option, any later version."  -- Seth
> David Schoen
>