encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

dtemeles at nvalaw.com dtemeles at nvalaw.com
Mon Feb 11 20:51:40 UTC 2008

Quoting Rick Moen <rick at linuxmafia.com>:

> The standard rejoinder is that, if a licence were, in some
> Terenkov/Wallace fever-dream scenario, ruled to have no force,
> recipients would end up with only the rights statutorily granted to a
> lawful recipient of any copyright-encumbered work, which is dramatically
> _fewer_ than any open-source licence conveys, and omits the rights of
> redistribution, creation of derivative works, etc.  (Plaintiff would
> thus have succeeded primarily in shooting himself/herself and other
> recipients in the foot.)  Recipients would then need to seek from the
> copyright owners some revised licence attached to a reissue of the work.
> In short, the standard rejoinder is "If so, so what?"  (Sort of the
> rhetorical equivalent of filing a demurrer in court.  ;->  )
> Since you're an attorney and this is your field, you might be able to
> identify something that the standard rejoinder overlooks.  That would be
> appreciated.

I think there are a number of problems with the standard rejoinder.   
The existence of widespread disagreement regarding the license v.  
contract, statutory infringement remedies v. contract remedies, and  
condition v. covenant issues, among other things: i) creates a level  
of risk and uncertainty that slows the adoption and growth of open  
source software and licensing strategies; ii) results in a number of  
poorly drafted open source licenses; iii) contributes to license  

As a society, our technological advances have far outpaced the legal  
system's ability to sensibly support transactions and relationships  
relating to that tecnology.  Software is somewhat unique and complex  
in that it embodies a variety of forms of intellectual property and  
capital such as inventions, works of authorship, trademarks, trade  
secrets, know-how, etc.  There are numerous inconsistencies between  
the various state and federal bodies of statutory and common law  
applicable to the creation, maintenance and transfer of these forms of  
IP/IC.  I humbly suggest that over the next 40 years, it will be  
critical to our economy that we restructure our laws to streamline  
IP/IC creation, maintenance and transfer much like we have attempted  
to do with various types of commercial transactions through the  
adoption of the Uniform Commercial Code.  UCITA is an initial, albeit  
deficient, attempt at the state level to begin addressing the issues.

> Quoting David A. Temeles, Jr. (dtemeles at nvalaw.com):
>> License-discuss may not be the appropriate forum for the discussion
>> Alexander is raising, but this topic is of significant interest and import
>> to the open source community and should be discussed vigorously by the
>> members of the open source community.  I would think that the members of
>> this list would have more intellectual curiosity in the enforceability of
>> open source licenses than demonstrated over the past few days in the
>> responses to Alexander's posts.

More information about the License-discuss mailing list