Question regarding certification

Bastin, Fabian f.bastin at
Thu Nov 11 17:51:38 UTC 2004

The question that a license is or is not a contract is complicated, and country dependent. In Belgium, law researchers from the CRID (, in French) have studied different open-source licenses. For them, with respect to the Belgian legislation, we have to interpret open-source licenses as contracts, even in the GPL case (there is differences of perception between latin legislation and american leglislation). The same should be true for most European Countries.



-----Original Message-----
From: John Cowan [mailto:jcowan at]
Sent: 11 November 2004 14:48
To: Walter van Holst
Cc: license-discuss at
Subject: Re: Question regarding certification

Walter van Holst scripsit:

>  I have a question regarding the certification process. Almost all OSS
> licenses assume that there doesn't exist a contract between the
> copyright holder and the end user of OSS since no consideration passes
> hands.

Actually, that's questionable on several different grounds.  Only the
GPL explicitly says it is not a contract; BSD-ish licenses aren't
either, but since they are basically just waivers, there's no need to
be (at least in common-law countries); most of the corporate licenses
as well as the AFL and OSL are explicitly contracts.

What's more, consideration is something courts can very easily find;
IMHO, consideration nowadays is as much a matter of form as seal.
Getting to use valuable software for nothing is probably plenty of
consideration.  (IANAL, TINLA.)

> At the same time all OSS licenses do not give any warranty
> whatsoever and reduce liabilities in a rather rigorous manner.

Proprietary licenses do the same.  Personally, I would have no problem
with an exception for malice.

> how complicated would the OSI certification process get?

As complicated as any stereotypical lawyer could hope for.  :-)

"What has four pairs of pants, lives            John Cowan
in Philadelphia, and it never rains   
but it pours?"                                  jcowan at
        --Rufus T. Firefly            

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