dtemeles at nvalaw.com
dtemeles at nvalaw.com
Tue Sep 21 20:27:20 UTC 2010
A point for discussion/clarification stated as an argument on
something Cindy raised ...
Quoting Cinly Ooi <cinly.ooi at gmail.com>:
> There is no get around it. It is a leave it or take it situation. Especially
> true since GPL claims it is a copyright license subjected to copyright law,
> not EULA which is subjected to contract laws.
I defy anyone to provide a US-based statutory reference or court case
that stands for the proposition that there is such a beast as a
"copyright license" that is not by definition a contract subject to
state law. The "bare license" theory as presented by Mr. Moglen and
the FSF is a fiction. Note how neither he nor anyone else at FSF has
ever cited a copyright case or statute in support of the "bare
license" argument. They simply raise a hunting example (that, by the
way, may not even be an accurate recitation of the concept in the
terms of real property law). The "bare license" peddlars wholly
ignore the fact that the patent, copyright and trademark acts
specifically designate that all patents, copyrights and trademarks
have the characteristics of personal property, not real property. The
hunting license example is therefore inapt.
So, why the lack of citations to case or statutory law? There is no
such thing as a "bare license" in copyright law. Under patent law,
the courts have used the term "bare license" to reference a
non-exclusive patent license - i.e., an agreement not to sue the
licensee for use in accordance with the terms of the license agreement
(or in other words, a contract that is subject to state law). None of
these courts, per my research, have ever suggested that there is a
license that is not also a contract.
Software licenses are by their very nature an agreement between the
licensor and licensee. In other words, they are a contract. There is
nothing magic about open source licenses vs. proprietary licenses.
Both grant rights to use code subject to the terms of the license.
Both are agreements. Both are subject to enforcement under state
Use beyond the terms of a license, proprietary or open source, can in
many circumstances be deemed copyright infringement. This is an
entirely different cause of action than a breach of contract claim
based upon a copyright license. There is some confusion within and
between the Circuits on the dividing line that distinguishes when a
cause of action will stand for infringement vs. breach of contract
when the licensee obtained the software pursuant to a license
agreement. Hopefully, a case will arise in the next several years
that the Supreme Court can take up to resolve the issue.
Why is the contract v. "bare license" issue relevant, you might ask?
I suggest that most open source licenses fail to address enforcement
in a practical way. The open source community cannot continue to hang
its hat on the unicorn of the "bare license" in the hope that it can
use the hammer of infringement remedies if/when a license must be
enforced against a party who breaches the terms of the license. We
should instead develop more realistic contract-based remedies that
address core enforceability issues in a manner that matches the
reality of open source development. Let's start with a simple issue
(tongue in cheek) that should be addressed - who actually has the
right to enforce a license in the typical open source project that has
potentially dozens or hundreds of contributors? Who is entitled to
damages? (the same questions arise in the infringement context as
well, but we'll save that for another day).
IAAL, but I am not your lawyer and this is not legal advice.
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