Contracts vs. bare licenses (was RE: Change ot topic, back to OVPL)

[Lawrence Rosen]

Alex Bligh wrote:
> I think what you are saying is <snip>
> the OSL is designed to be enforceable as a 
> bare license, but the copyright holder may also (presumably 
> arguing in the alternative) seek to show it is a contract, 
> and if they succeed, they have the normal remedies for breach 
> of contract.

Right! 

Except in the third line you should replace "copyright holder" with
"Licensor." Licensors can enforce their own contracts even when they are not
the copyright holders of the underlying works.

This concept, I believe, is captured more cleanly in the most recent draft
of OSL 3.0 (www.rosenlaw.com/DRAFT-OSL3.0.pdf):

   9) Acceptance and Termination. If, at any time, You expressly assented to
this
   License, that assent indicates Your clear and irrevocable acceptance of
this
   License and all of its terms and conditions. If You distribute or
communicate
   copies of the Original Work or a Derivative Work, You must make a
reasonable
   effort under the circumstances to obtain the express assent of recipients
to
   the terms of this License. This License conditions Your rights to
undertake
   the activities listed in Section 1, including Your right to create
Derivative
   Works based upon the Original Work, and doing so without honoring these
terms
   and conditions is prohibited by copyright law and international treaty.
   Nothing in this License is intended to affect copyright exceptions and
   limitations (including "fair use" or "fair dealing"), nor to prevent You
and
   Licensor from agreeing separately to any other license terms. This
License
   shall terminate immediately and You may no longer exercise any of the
rights
   granted to You by this License upon Your failure to honor the proviso in
   Section 1(c) herein. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]
 
 

> -----Original Message-----
> From: Alex Bligh [mailto:alex at alex.org.uk] 
> Sent: Thursday, August 25, 2005 8:59 AM
> To: lrosen at rosenlaw.com; license-discuss at opensource.org
> Cc: Alex Bligh
> Subject: RE: Contracts vs. bare licenses (was RE: Change ot 
> topic, back to OVPL)
> 
> Larry,
> 
> --On 25 August 2005 08:40 -0700 Lawrence Rosen 
> <lrosen at rosenlaw.com> wrote:
> 
> >> I'm very confused by this. I quote from the top of p181 of 
> your book:
> >> 	"Both the OSL and the AFL are unilateral contracts."
> >
> > I'm sorry for the confusion.
> >
> > The OSL and AFL are *worded* to be unilateral contracts rather than 
> > bilateral contracts.
> >
> > But they are not contracts until the formalities of 
> contract formation 
> > (particularl assent) are completed. Until then they are 
> bare licenses.
> >
> > I have argued before that contracts have additional enforcement 
> > options than bare licenses. That's why I put the 
> "Acceptance and Termination"
> > section into the OSL/AFL. I want to encourage the formation of 
> > contracts, and thus to encourage licensors to design "I ACCEPT" 
> > buttons or other mechanisms to obtain assent. But such steps are 
> > defined to be those "reasonable under the circumstances" to 
> deal with 
> > situations where obtaining assent is simply not possible.
> 
> OK. That's interesting. I think I am still missing one 
> subtlety on the OSL then.
> 
> In a situation where steps are not "reasonable under the 
> circumstances"
> (that sounds like a US specific phrase, but let's stick with 
> it), does the recipient (i.e. "You" in the contract) have
> a) no license at all; or
> b) a bare license
> 
> I had assumed from the wording of (9) in the OSL that unless 
> and until the putative licensee had accepted the terms of the 
> license (including "by exercising any of the rights granted 
> to You in section 1, which I note does not include the right 
> to "use" which is presumably either implied or unnecessary to 
> grant), then there is no license. IE I had assumed the OSL 
> does not act as a bare license in the absence of acceptance, 
> and (b) above was the case.
> 
> I think what you are saying is that my assumption is 
> incorrect, and the OSL is designed to be enforceable as a 
> bare license, but the copyright holder may also (presumably 
> arguing in the alternative) seek to show it is a contract, 
> and if they succeed, they have the normal remedies for breach 
> of contract.
> 
> If that's correct (i.e. if my assumption is wrong and (b) is 
> the case), what is the advantage of having the OSL work this 
> way to the copyright holder? If it was designed ONLY as a 
> contract capable by acceptance of conditionally granting a 
> license (and did not also operate as a bare license), then 
> the copyright holder could argue when enforcing the license 
> (in response to a "not reasonable under the circumstances" 
> argument from the other party) that if so, there was no 
> contract, and thus no license at all, and thus the party is 
> admittedly in breach of copyright (rather than also having to 
> show they are in breach of the bare license) - i.e. it would 
> take away an entire line of defence. This would not prejudice 
> the legitimate licensee, as if challenged by an aggressive 
> licensor, they could just confirm their acceptance of the terms.
> 
> I assumed the reason was because offers are (in general, 
> unilateral offers to the world being a little of a special 
> case) capable of being withdrawn before they are accepted, 
> but IIRC similar things apply to licenses for which 
> consideration has not been received, and there is no 
> consideration to the licensor anyway until a license in 
> (just) contract form would have been accepted.
> 
> Re the "I accept" buttons, I am not sure how they apply to 
> distributions in source form which is the normal 
> modus-operandi for *development* of open-source projects - 
> and it's generally those who have the source whom one is 
> worried may misuse it, isn't it? Hence (I had presumed) the 
> acceptance by conduct provision (referring to s.1).
> 
> Alex