The Rails Wheels licencing system and Open Source

[Ben Tilly]

On Wed, Sep 3, 2008 at 10:48 PM, Mark James <mrj at advancedcontrols.com.au> wrote:
> John Cowan wrote:
[...]
>> _Specht_ established, at least for the U.S., that providing a direct link
>> to the download and another link to the contract is not enough to create
>> an offer-and-acceptance situation: people who directly download without
>> looking at the contract aren't bound by the latter.  YMMV; IANAL.
>
> I guess this is a problem for a lot of software that only employs
> an embedded GPL licence file.

Only if you choose to defend that software under contract law instead
of copyright law.  The position of the FSF has always been that the
GPL can be entirely enforced under copyright law, so no contract need
be formed.  The recent Jacobsen v Kamind decision supports the
viability of that position in the USA.

The key to making that possible is that the GPL does not affect you
until you do something that puts you in potential violation of
copyright.  So if someone fails to follow the license, you can hit
them under copyright law.  What John was saying is that your
restriction on making the code live does not follow this model.  If
someone has received a legitimate copy, they can do anything they want
without accepting your license.  So if they put it on a  live website
they have violated no agreements they made, and they are not in
violation of your copyright.  Which leaves you with no legitimate
grounds for a lawsuit.

I am not a lawyer and I won't give you legal advice.  However I will
suggest that you need to discuss John's comment with a competent
lawyer.  And you'll also need to discuss your options with said
lawyer.

Cheers,
Ben