Rod Dixon roddixon at
Wed Jan 17 21:39:30 UTC 2007

In my opinion, whether software licenses are governed by contract law or copyright law is not as "controversial" an issue as it is a complicated and misunderstood matter. Semantics aside, in a fundamental or basic sense a copyright license is a contractual legal tool. I do not read FSF's arguments to be in contradistinction of this basic point.

Some some software licenses do nothing more than set forth the scope of the copyright holder's rights that is granted to the licensee.  Under such circumstances, a violation of the license would effectively constitute a copyright infringement for which remedies under the Copyright Act would apply. The complication arises from determining when a copyright (or, patent, for that matter) license goes beyond the statutory IP rights. When a license terms goes beyond statutory IP interests the license must rest on contract (or commercial code) for its enforcement.  Drawing this line can be exceedingly difficult. 

The U.S. Supreme Court has recently demonstrated the difficulty in determining whether the scope of an IP license in MedImmune v. Genetech (Jan 9, 2007).  In that case, 8 justices concluded that a contract claim had been asserted - arising from a patent license. Although the holding of this case concerns whether the suit is justiciable, read section II.A of the
dissent, wherein Justice Thomas  explains how an IP license (and a claim on its infringement) may simply constitute a repackage of the statutory right If so, as a practical matter, the license is just a license. In the case, I think Thomas has right idea, but the majority of the Court did not; they saw something contractual in the license and the claim. Granted, the license issue may be slightly obscure for some readers, but it is there, if you read carefully. Consequently, some software licenses belong in the repackaged box and many do not. I think the GPL is more than a repackaging of statutory copyright interests. Hence, the GPL is contractual in more than a basic sense; it has terms that only can be enforced contractually, notwithstanding that as a practical matter parties may avoid litigation.

-Rod Dixon

Rod Dixon wrote:
> The original post requires an answer that is a little more nuanced than
> John's answer.  "Acceptance" of the terms of a contractual agreement -
> i.e. a software license

It's highly controversial whether software licenses are governed by
contract law (at least in the U.S.).  The FSF's stance is that the GPL
is solely a copyright license, governed by copyright law.

> For discussion purposes, if an end-user can "run" software (meaning use
> it as an executable) without being bound by a license, then the default
> rules of Copyright law should apply (in the U.S.) and that means the
> software is not open source for the end-user  since copyright law does
> not make software open source by default.

Software is open source if the user can choose an open source license.
It's true that it's not open source for *them* unless/until they accept
the license, but as long as they have the right to do so, it's open
source in general.

- - I agree.

  If leaving the default rules
> of copyright controlling is intended by the copyright holder

This is an illogical hypothetical.  If you want default (plain)
copyright, you should have no license.

- - This is not illogical. The point drives home a critique of the use of software licenses - regardless of their terms; namely, why license software if the intent of the copyright holder merely is to repackage the default law of copyright. Open source does not repackage the default law of copyright, and that is one important reason why the licenses used are contractual.

-Rod Dixon

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