Public domain software is not open-source?

[Ben Tilly]

On Thu, Mar 6, 2008 at 3:50 PM, Alexander Terekhov
<alexander.terekhov at gmail.com> wrote:
>  To repeat, Mr. Rosen is on record:
>
>  "Most open source licenses you'll find at www.opensource.org and all proprietary
>  software licenses you'll find anywhere are to be interpreted under
>  contract law. They can be
>  enforced, like other contracts are enforced, against both a licensor
>  and a licensee.
>
>  Contracts can almost always be enforced against a licensor. If a
>  licensor promises you
>  the source code, or promises not to interfere with your lawful uses of
>  the software, he is bound
>  by those promises as long as you reasonably relied on those promises
>  when you accepted the
>  contract. The general rule is that the author of a contract is bound
>  by his own words."

Which is all true but leaves out the huge point that the first rule of
contract law is that it only applies when there is an actual contract.
 And establishing a contract between two parties means that very
specific conditions have to be met.  (For example consideration must
exist.)  With many ways that open source software is actually
distributed, these terms are not satisfied and no contract exists.

And yes, Larry Rosen is *also* on record saying how one should
distribute open source software if one wishes to create a valid
contract.

Ben

PS And now for the obligatory disclaimer that I am not a lawyer and
this is not legal advice.