Silly question: are usage restrictions covered by the OSD?

[Brian Behlendorf]

On Fri, 17 Oct 2003, Chuck Swiger wrote:
> Restrictions on how people _use_ software, such as "you may only use my
> editor if you are writing open-source software", are more appropriately
> handled by end-user license agreements and contract law than by
> copyright law, at least if my understanding is correct.  Therefore, if
> the license that Chris has proposed does require active consent from
> the end-user in order to form a contract, it would fail OSD #10:
>
> "10. License Must Be Technology-Neutral
>
> No provision of the license may be predicated on any individual
> technology or style of interface.  Rationale: This provision is aimed
> specifically at licenses which require an explicit gesture of assent in
> order to establish a contract between licensor and licensee. [ ... ]"

It's curious how far apart the wording of #10 and its rationale are.

At any rate, it's been said by lawyers on this list that licenses like the
GPL would probably be evaluated as contracts by a judge, not just as
copyright licenses.  Many open source licenses contain provisions that
affect use - the patent termination clause in the APSL, for example
(paraphrased, your right to *use* APSL software is gone if you file a
patent claim against Apple).  There have been long threads on this list in
days past regarding whether open source authors *should* be seeking assent
before allowing their software to be downloaded, or at least before use -
some claim it would make our licenses that much less vulnerable to being
ignored by the user or mooted by a court, if I'm capturing the discussion
accurately.

	Brian

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