Legal soundness comes to open source distribution

Rod Dixon rod at
Tue Aug 13 04:06:24 UTC 2002

I believe Daniel Bernstein is making a normative argument concerning the law
of copyright. I would not say that he is wrong, but, rather, that it is
doubtful that the law will advance in the manner he proposes.  Carol and
Russ have taken opposing positions on the same issue Bernstein discusses on
his website. At the heart of the matter, we are debating how best to
characterize the open source transaction. Ultimately, the warranty issue may
become less important (the UCC's warranty provisions will not govern the
transaction),  if the transaction is a copyright license rather than a
"sale" of open source software. As Larry and Carol have stated, open source
licenses run the gamut from "copyright license" to contract (even if we
assume that in the context of an open source licensing transaction, there is
a pertinent distinction to be made). Hence, the resolution of this issue
will only be partly useful.

I disagree with Bruce regarding Bernstein.  For some scholars and
commentators, one displeasing factor that open source shares with
proprietary software is the apparent reliance on contract law, which has the
tendency/potential to undermine the public policy matters thought resolved
by the Copyright Act. For example,  Microsoft has successfully argued in
court that a software license implicitly blocks the first sale doctrine from
attaching to the software transaction for the benefit of the
end-user/licensee. Carol makes the same point.  From what I can determine,
Bernstein believes this result to be a flawed application of the law. He may
be correct, and certainly the argument is not "wrong."  The argument sparks
a great deal of controversy, and courts have blessed both sides of the
argument(s). (See, e.g.,  Microsoft v. Harmony Computers).  To better
appreciate the nuances of the argument, compare how section 117 applies to
"owners" of copies of software with how section 109 applies to "owners" and
"possessors" of copies of software.

Last point: I do not think anyone made the argument that open source license
s that are contracts are not enforceable. Looking forward, the issue is what
needs to be done for those licenses set up as click-wraps. Click-wrap open
source licenses are viewed favorably by courts - - to the extent that they
are viewed favorable at all - - because the click-wrap along with other
factors demonstrate indicia of mutual assent; that is, that the software
license/contract was validly formed. This is a big hurdle, but valid
contract formation says nothing about the terms; whether the terms are
enforceable in the manner the drafter intended is a distinct question not
answered by the determination that the contract was validly formed. Nor is
there a compelling basis to believe denominating an open source software
license as a so-called copyright license means open source developers will
not confront contract formation issues in court.


----- Original Message -----
From: "Bruce Dodson" <bruce_dodson at>
To: "Russell Nelson" <nelson at>; <license-discuss at>
Sent: Monday, August 12, 2002 10:06 PM
Subject: Re: Legal soundness comes to open source distribution

> I thought that section 117 was about the right to crack a program's copy
> protection (if necessary) in order to make a legitimate backup copy.
> that's an oversimplification, but I think it's closer to the truth than
> Bernstein's argument.  It goes to show that you shouldn't believe every
> opinion that you read on the Internet.
> (Follow the references back to the source; the quotes under "patches" both
> seem to be taken out of context.  If you read them in their intended
> you "might" find that they don't support Mr. Bernstein's opinion nearly as
> well.)
> Bruce
> ----- Original Message -----
> From: "Russell Nelson" <nelson at>
> To: <license-discuss at>
> Sent: Monday, August 12, 2002 6:59 PM
> Subject: Re: Legal soundness comes to open source distribution
> > [ Catching up on mail from ten days ago ]
> >
> > Carol A. Kunze writes:
> >  > Here is the theoretical difference between proprietary and
> (GPL,
> >  > BSD) free software.   With the former the user agrees to a license
> does
> >  > not get title to the copy of the program.  Without agreeing to the
> license
> >  > (and the use restrictions in it), the user has no legal right to use
> the
> >  > copy of the software that they possess but do not own.  Basically,
> a
> >  > license transaction where the user has no ownership in the copy of
> >  > software they possess.
> >
> > My understanding is that, if you have legally acquired a copy of the
> > software, you have the right to run it.
> > Absent a contract otherwise, a user can do anything they want to their
> > copy, including use it, modify it, give it away, or resell it to
> > someone else.
> >
> > So why form a contract, then?  To get a warranty disclaimer.  To get
> > the recipient to agree that they lose their patent grant if they sue
> > for patent infringement.
> >
> > If we can get those things without a contract, that would be a perfect
> > world.
> >
> >  > > The question here is whether we should amend the Open Source
> >  > > Definition so that it is clear whether click-wrap licenses are
> >  > > allowable or not.  We could go either way, but we want to hear from
> >  > > you first.  Your opinions solicited, and engaged!
> >  >
> >  > OSI has already blessed licenses which are intended to be agreements
> >  > contracts (see IBM license), so I'm confused about what the point is
> >  > here.    And why OSI definition would have to change.  Am I missing
> >  > something?
> >
> > They're not enforcable, at least as I understand it.
> >
> > --
> > -russ nelson     |
> > Crynwr sells support for free software  | PGPok | businesses persuade
> > 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce
> > Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   |
> > --
> > license-discuss archive is at
> >
> --
> license-discuss archive is at

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