Legal soundness comes to open source distribution

Carol A. Kunze ckunze at
Wed Aug 14 15:26:42 UTC 2002

John Cowan wrote:

> Lawrence E. Rosen scripsit:
> > Whatever else open source licenses do, they do not explicitly make a
> > licensee the "owner of a copy."  To transfer ownership requires a
> > contract; a mere license won't do.
> That seems farfetched to me.
> . . .
> In neither case is there any mention whatsoever of ownership.
> I grant that in most cases ownership is transferred by means of
> contract, but I don't see how a contract can be required.

I look at it somewhat different.  It's not that you NEED a contract to transfer
ownership - its that if you transfer ownership in exchange for consideration
(usually money), you HAVE a contract.    Open source transactions involving
payment of money are all agreements.   The gift issue is different - I think you
can transfer ownership in a gift transaction without a contract.

Here are what I see as the options for what form an open source
transaction/license can take:

1) "SIMPLE" sale (no additional terms, just transfer of ownerhship of a copy for
money) or gift of a copy, PLUS a non-contractual permission notice which lets
you copy, modify, distribute, etc.   The notice license cannot be enforced by
the user, only the copyright owner.

2) Sale PLUS license - user gets title to the copy, plus agrees to a license
that allows copying, modification, etc.  The user can enforce the contractual
license.  This could legally include use restrictions, restrictions on transfer,
etc.  As I said previously, its not common in a sale but it can be done.

3) PURE license, user does not get title, but gets a license to use, copy,
modify, etc.   This may have use restrictions, etc., or not.

Traditional open source (GPL, BSD) follows the first.  Proprietary follows the
third.  There is nothing inherently evil about PURE licenses. If you reserve
title, but give the user all the rights they would have in a sale, plus the
right to copy, etc., where is the harm?   I'm not sure why you would want to do
this, but you could.

Is the choice of form central or relevant to the OSD?  The previous acceptance
by OSI of licenses that are clearly agreements would suggest that the answer is
no.    So perhaps we should go back to deciding what terms are allowable under
the OSD, rather than the form of the transaction.

Having said that, the "simple sale/gift plus permission notice" (option 1 above)
versus making the transfer subject to a more complex agreement (sale plus
license (option 2) or pure license (option 3))  IS A CRITICAL ISSUE because
there is so little understanding or acknowledgement of option 1.   If open
source wants this form of transaction to work, it needs to do a better PR job.
Just being clear about the proper characterization of the transaction would help

And the consequences of requiring distributors (who may be unlawyered
programmers) to enter into complex contracts with users needs to be further


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