(OT) - Major Blow to Copyleft Theory

[Alexander Terekhov]

On 8/28/07, Chris Travers <chris.travers at gmail.com> wrote:
[...]
> With the artistic license it is different.  It is a conditional unilateral
> license grant with no obligations in return (unlike the GPL which provides

>From "Understanding Open Source and Free Software Licensing":

http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
(Chapter 6: Legal Impacts of Open Source and Free Software Licensing)

-----
Entering Contracts

Any contract between two or more persons rests on two fundamental
assumptions: one, that there is some mutual obligation created by the
agreement, which is known as the consideration; and two, that there is
mutual consent, or a meeting of the minds, as to the terms of the
contract, usually described as the offer and the acceptance. Once an
offer that involves the exchange of consideration has been made and
accepted, an enforceable contract is created. This principle is, of
course, subject to numerous exceptions.

[...]

Even the most unrestrictive open source license imposes at least a
minimal obligation ensuring that consideration in the legal sense is
exchanged and an enforceable contract is created through the license.
The MIT License, described in Chapter 2, imposes the following
restriction on licensees: The above copyright notice and this permission
notice shall be included in all copies or substantial portions of the
Software.

While this obligation is not onerous, it is real, and failure to abide
by it constitutes a breach of the contract. By extension, the more
onerous restrictions imposed by the GPL, the BSD, the Apache, and all of
the other open source and free software licenses already described
impose sufficient obligations so as not to fail as contracts for lack of
consideration. The licensor grants a real benefit, the right to use the
licensed software, and the licensee agrees to genuine restrictions,
i.e., those that are expressed in the license.
-----

(Note that "right to use" is meant in the sense of "implicit in a
nonexclusive license is the promise not to sue for copyright
infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir. 1996),
citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236,
242(1927) (finding that a nonexclusive license is, in essence, a mere
waiver of the right to sue the licensee for infringement); see also
Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990)
(holding that the granting of a nonexclusive license may be oral or by
conduct and a such a license creates a waiver of the right to sue in
copyright, but not the right to sue for breach of contract).")

regards,
alexander.