A must read for license law

[fwilf at morganlewis.com]

"daniel wallace" <danw6144 at insightbb.com> wrote:

>>"Eben Moglen's theory of:  "Licenses are not contracts: ..." is simply 
legal nonsense."

This is basic stuff.  A license is a permission that can be granted on a 
unilateral basis (e.g., "I grant you a license or permission to re-post 
this message"), whether or not you want that permission, and whether or 
not you agree with me or anything I say. 

A contract is an agreement.  It can be offered on a unilateral basis, but 
it still requires the second party to agree by assent, performance or 
otherwise.

IMO, the GPL is a license agreement in that (like most software license 
agreements), it grants permissions ("you may use the software"), but 
requires the licensee to perform if the licensee chooses to exercise her 
rights.  So, again IMO, the GPL is both a license and a contract.  This, I 
believe, is what Profs. Davis, Junger and Dixon are saying in the emails 
you have quoted.

However, I don't think it's fair to characterize Prof. Moglen's discussion 
as nonsense.

>>"Doesn't anyone outside the academic legal community harbor
any suspicion that the GPL is broken? Eben Moglen has propounded
specious legal theories without ever citing relevant case, statute
or other legal authority supporting his stance on the validity
of the GPL and his claim that it is not a(n) (invalid) contract."

>>"Moglen makes extraordinary claims about the GPL, so why doesn't
he come forward with the appropriate legal citations?"

There has been precious little in the way of court decisions involving 
open source, freeware and shareware licenses.  Even the few dozen (?) 
cases reported involving shrinkwrap agreements is an amazingly small 
percentage of the cases one would expect given the billions of dollars of 
shrinkwrap software sold over the past few decades.  As a result, all 
interested communities, including the academic community, have little to 
work with other than speculation.

>>"Moglen is a J.D. with a Ph.D. in history and not an LL.M. He would not 
even be accepted as qualified for Professorship at many institutions. What 
qualifies his word alone as "legal authority"?"

That's name-calling, if not trolling.  Many (if not most) law professors 
in the U.S. have a "basic" law degree (LL.B. or J.D.), and not an advanced 
degree, such as an LL.M., S.J.D. or Ph.D.  Moglen's qualifications speak 
very well for him.  Certainly, he wouldn't be a professor at a prestigious 
law school if the decision-makers at the law school did not think he was 
qualified.

Note that Prof. Moglen is counsel for the FSF, so he is making an argument 
on his client's behalf.  You and others may not agree with that argument, 
but you should take a lesson from the professors whom you quote; focus on 
the issues and the arguments, and do not engage in name-calling. 
 
I hope this helps.

Fred Wilf
_____________________________________________
Frederic M. Wilf
Morgan Lewis (Philadelphia)
215.963.5453 (voice) <> 215.963.5001 (fax)
fwilf at morganlewis.com <> www.morganlewis.com
_____________________________________________




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