Eiffel Forum License

Tue May 2 01:15:46 UTC 2000

Rod Dixon, J.D., LL.M. wrote:
> 
> 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.

I'm with you so far.

>  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.

Note that above you refer to "the GPL" -- which is clear -- and below you
refer to "GPLs" -- which isn't. I wish you would restrict your use of "GPL"
to mean _the_ GPL. Are you saying that _the_ GPL is unenforceable?

> 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.

Now this last sentence sounds like you are saying that GPL is written in such
a way as to be enforceable purely on copyright law.

> (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
> >

-- 
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