brainstorming

[Benjamin Rossen]

Thanks Kevin, 

This is very interesting, and it is clear from Eben Moglen's argument is that 
he has positioned himself in the GPL camp. He may be correct; I think courts 
and one day Supreme Courts in countries where these matters are fought out, 
and the fora were matters of framing, and interpreting international treaties 
are carried out. I don't think we can say he is correct because the logic of 
his argument is compelling - although it is that too - for law in the end is 
not analytic as mathematics is; it is socially contructed by convention. We 
are yet to see where this goes. 

He may be right, but that still does not rob my suggestion of its possible 
force. Perhaps the Open Source License is not a contract, but then we may 
decide that in addition to being an expression of copyright it should also 
become a contract - shrink wrap or click wrap or what ever kind you would 
like to call it. 

I think there are legal difficulties with this. A contract with someone who 
has not paid for the product could be struck down on the grounds of ' 
'insufficient consideration'. Is that a problem? Well then, could be make a 
peppercorn contract, and state: 

The pepercorn has been acknowledged by the writer of the Open Source software 
to have been paid. 

Is such a transparent legal fiction so foolish that it would never stand up to 
contest? Is there something else that could be used to create the conditions 
for a contract? 

And is Eben Moglen perhaps wrong... the copyright can be used to make a 
contract where no payment is transacted. The legal form would be: 
 
I give you this software freely (and free)
and in consideration
I take away your right to proceed against me for my breech of your copywrites 
and patents. 

That is the offer,

And if the software, ideas from it, patterns, algorithms, bits of code or 
anything else in it, can be found in the software of the proprietary software 
vendor, then we can say that acceptance has been demonstrated. 
ERGO
We have a contract. 

Benjamin Rossen 


On Friday 14 January 2005 19:52, Kevin Bedell wrote:
> 
> > -----Original Message-----
> > From: Benjamin Rossen [mailto:b.rossen at onsnet.nu]
> 
> 
> > The Open Source License is a form of contract with the user of the
> software.
> 
> This is not generally accepted. See this article by Eben Moglen:
> 
>     http://emoglen.law.columbia.edu/publications/lu-12.html
> 
> Eben, for those that don't know, acts as General Counsel for the FSF. I've
> spoken with Eben on this and I know he feels strongly about this
> interpretation.