dtemeles at nvalaw.com
dtemeles at nvalaw.com
Wed Sep 22 04:40:21 UTC 2010
Raj - you are mistaken in assuming that a contract must be bilateral.
Various societies dating back thousands of years have allowed both
bilateral and unilateral contracts. (see
http://en.wikipedia.org/wiki/Contract#Bilateral_and_unilateral_contracts for a
simple description of the difference between bilateral and unilateral
contracts with a bonus discussion of conditions precedent). English
and US common law absolutely include unilateral contracts and open
source licenses are often used in this manner.
You are correct, however in the end result. If one rejects the
unilateral license agreement applicable to open source software that
the individual downloads, then clearly the individual has no license
to use the software and any use that violates the author's exclusive
rights under 17 USC 106 would constitute infringement (unless excused
elsewhere in the code or unless sufficient facts exist to create an
IAAL, but not your lawyer and this is not legal advice.
Quoting "Raj Mathur (??? ?????)" <raju at linux-delhi.org>:
> On Wednesday 22 Sep 2010, dtemeles at nvalaw.com wrote:
>> 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
>> contract law.
> Regardless of legal precedence or lack thereof, a software licence is
> not a bilateral or multilateral agreement -- it is a unilateral grant of
> privileges from the licensor to the licensee. There cannot be a
> contract between two parties, at least one of whom is unaware of the
> other's existence; in many cases, both parties are unaware of the
> other's existence (e.g. Linux kernel developers do not know all their
> users and users do not know about kernel developers).
> The agreement of a software user to its licence is, similarly, one-way.
> I don't call up RMS every time I install a new version of Emacs on my
> computer. Either I agree to the terms laid out under which I can use
> the software, or I don't use it. If I don't agree to the terms and
> continue using the software, I am in violation of copyright; however,
> since there has been no mutual contract between RMS and I or my
> representatives, there can logically be no contract violation.
> IA most definitely NAL.
> -- Raj
> Raj Mathur raju at kandalaya.org http://kandalaya.org/
> GPG: 78D4 FC67 367F 40E2 0DD5 0FEF C968 D0EF CC68 D17F
> PsyTrance & Chill: http://schizoid.in/ || It is the mind that moves
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