Contract or License?

John Cowan jcowan at
Thu Sep 13 22:31:15 UTC 2001

Lawrence E. Rosen wrote:

>  I must admit that,
> even though I am an attorney, I have never understood the distinction
> between a software license and a contract. 

Certainly there can be no doubt that some software licenses, Microsoft
EULAs, for example, are contracts or they are nothing.  Whether a
EULA is a valid contract depends on whether {shrink,click}wrapping is a
valid form of acceptance.

No lawsuit has ever turned on violation of any Open Source license,
AFAIK, so anyone can have a theory of what they really are.  To me
(though IANAL) an OSL looks like a conditional grant: it permits
you (i.e. anyone at all) to do A, B, and C (which would otherwise be
forbidden by statute), provided that X, Y, and Z.

Most conditional grants are made by governmental bodies or officials,
but not all.  Consider RFC 1988 (
which explicitly labels itself a conditional grant.  Although the grant
is for patent rights rather than copyright rights, it seems to me
essentially analogous to (but not an example of, of course) an OSL.  I
see no reason to think that RFC 1988 is in any way a contract: no offer,
no acceptance, no consideration.


Not to perambulate             || John Cowan <jcowan at>
    the corridors               ||
during the hours of repose     ||
    in the boots of ascension.  \\ Sign in Austrian ski-resort hotel

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