> Wilson, Andrew <andrew.wilson@intel.com> wrote:
> 
> Ben Tilly wrote: 
> 
> > I didn't know, but it was my impression that it couldn't happen. 
> > However when I googled for the topic, I found nothing saying that it
> > couldn't happen, and http://www.ilaw.com.au/public/licencearticle.html
> > saying that it definitely could.
> 
> > Is this really true?  And if so, does anyone have any thoughts on why
> > it isn't more often discussed?
> 
> It may not be discussed more often because it may not be true.
> 
> I think Mr. Malcolm, author of the article you cite,
> can find others who agree that contracts are, generally speaking,
> preferable to licenses (cue Larry Rosen).  He may have much more
> difficulty finding others who agree that open source licenses can
> simply be terminated by notifying licensees. I am not a lawyer; 
> the lawyers who frequent this list may want to comment. 
> 
> You can certainly find
> historical cases of copyright holders who relicensed open source
> software under proprietary terms and then ceased distributing
> the open source version.  However, I'm not aware of any copyright
> holders who then took the extra, drastic step of informing licensees
> that
> their open source license had been revoked.  You would think that
> such a scenario would produce a big, public fight and that it would be
> well
> known if such a case had in fact ever occurred.

Disclaimer - Not US law + sorry about line breaks..

There are plenty of cases (at least in English/AU law) to the effect that a licence can be revoked even if supported by a contract, unless it is a "licence coupled with an interest" in property.  Eg - can a cinema owner eject you from a cinema even though you have paid for a ticket to see the movie?  Can a hotelier evict you even if you have paid for the room for the night?  If they can, you have something other than a licence.  I recall that Copinger and Skone James on Copyright (I don't have it handy) point to one case where a licence in a contract for computer software is irrevocable during the term of the contract.  I am dubious about this proposition because it runs counter to fundamental principles of property law.

The issue of revocation based on contract non-contract is a non issue in my view.  That is, *the fact that you acquire the software under a contract doesn't of itself protect you from revocation* unless the contract has specific peculiarities.   

The difference with having a contract is that you will have a right in breach of contract as a result of the termination (ie an action in damages), not that you can continue to use the software subsequent to the revocation. 


Brendan 


-- 
Brendan Scott IT Law Open Source Law (+61) 414 339 227
http://www.opensourcelaw.biz
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