Public domain software is not open-source?

Alexander Terekhov alexander.terekhov at
Fri Mar 7 14:44:26 UTC 2008

On Fri, Mar 7, 2008 at 1:40 AM, Ben Tilly <btilly at> wrote:
> On Thu, Mar 6, 2008 at 3:50 PM, Alexander Terekhov
> <alexander.terekhov at> wrote:
> >  To repeat, Mr. Rosen is on record:
> >
> >  "Most open source licenses you'll find at 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.

Scenario: Larry Rosen transacts some object code to, say, Alan Cox.
Larry Rosen claims that it is copyrighted by him (well since he is on
record sorta trying to copyright Shakespeare you can't be really sure
but okay) and licensed under the OSL. Larry Rosen neglects to obtain
express assent (like asking Alan to click on "I accept" button) and
doesn't ask any money in that transaction.

A few days latter Alan Cox decides to make use of the OSL license. He
accepts the license by performing an act reserved to copyright owner
(Larry Rosen) like making a bunch of copies and even gives some to his
girlfriend. A few days later Alan wants to tinker with Larry's code.
Alan videoconfs Larry and asks him for the source code
( Larry tells
Alan "forget it" (makes it clear that he doesn't want to give Alan the
source code).

Alan sues Larry and claims that Larry doesn't act as promised in the
OSL. (A promise to provide Alan "a machine-readable copy of the Source
Code of the Original Work along with each copy of the Original Work
that Licensor [Larry] distributes" or doesn't "satisfy this obligation
by placing a machine-readable copy of the Source Code in an
information repository reasonably calculated to permit inexpensive and
convenient access by You [Alan] for as long as Licensor [Larry]
continues to distribute the Original Work".)

Larry counter claims that because Alan didn't click on "I accept" and
didn't pay a cent, the court should dismiss the suit with prejudice.

Alan points out that he has in fact accepted the OSL by performing an
act reserved to copyright owner Larry, that he (Alan) is now obliged
to provide source code to his girlfriend (see above), and that the OSL
is full of consideration supporting the contract. He cites to "In addition, under contract
law, a contract is supported by consideration even if the
consideration flows solely to a third party. See Mencher v. Weiss, 114
N.E.2d at 181("[I]t is fundamental that a benefit flowing to a third
person or legal entity constitutes a sufficient consideration for the
promise of another."); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e
(1981)." In re Asia Global Crossing, Ltd., 326 B.R. 240 (Bankr.
S.D.N.Y. 2005)

What do you thik the judge will rule?


 02/26/2008 ENDORSED LETTER addressed to Judge Laura Taylor Swain from
Daniel B. Ravicher...
 02/27/2008 ORDER that Defendants Verizon Communications, Inc. has
until March 14, 2008..."

 -- 1:07-cv-11070-LTS aka Never Beginning "GPL Enforcement" case

More information about the License-discuss mailing list