a proposed change to the OSD

Rod Dixon, J.D., LL.M. rod at cyberspaces.org
Sat Oct 26 21:36:31 UTC 2002

Calling an open source license a gift is nice semantics, but I am unsure
what else that description gets us...

Try asking yourself what is the remedy for breach/violation of an open
source license that the copyright holder/licensor can pursue? In answering
the question, it is not enough to say that no one will violate the license;
I am asking a "what if" question (and, truth be told, open source licenses
occasionally are violated).

Not to ask and answer my own question, but I suspect the answer will be that
the open source licensor/copyright holder will seek the same remedy as
anyone else; namely, the copyright holder will enforce his or her copyright
license. If so, there are obvious questions that the court will have to
answer, which may include the mutual assent issue, if litigation is the
route to remedy.

I understand the desire to develop of a habit and practice that might
ultimately impact the resolution of legal rights in the somewhat-distant
future, but I do not understand the persistent inclination to ignore how
courts have viewed these issues in the past, and likely will do so for some
time in the future.

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at cyberspaces.org
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132

----- Original Message -----
From: "Russell Nelson" <nelson at crynwr.com>
To: <license-discuss at opensource.org>
Sent: Saturday, October 26, 2002 1:01 PM
Subject: RE: a proposed change to the OSD

> Lawrence E. Rosen writes:
>  > the courts are clear about the importance of such notices for
>  > contract formation.
> What attributes of a license make a contract necessary?  I know that
> you need a contract to disclaim warranties, but I'm not sure that it's
> necessary to disclaim a warranty on a gift.
>  > I'll change my mind about this only after you succeed in changing
>  > the law.
> That's what I'm trying to do.  I have mostly contempt for legislators,
> but judges and lawyers form law in a much wiser manner.  There isn't
> an awful lot of precedent in regards the distribution of free
> software, and what precedent exists is only on a District level.  I
> believe that, by codifying existing practice, we can change the law --
> or at least affect judge's decisions.
> At the end of the day, Larry, the community doesn't want to use
> software for which it has to contract to use.  Since it's our job as
> an industry advocacy group to encourage the production and use of open
> source software, it's our responsibility to tell the producers of open
> soruce that the users of open source aren't going to contract for its
> use.
> --
> -russ nelson              http://russnelson.com |
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