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Re: Open source licenses are /actually/ contracts?!?

From: Tim Tyler
Subject: Re: Open source licenses are /actually/ contracts?!?
Date: Tue, 28 Aug 2007 12:52:54 GMT
User-agent: Thunderbird 2.0a1 (Windows/20060724)

Alexander Terekhov wrote:
Tim Tyler wrote:
You have no right to redistribute the software - with
or without the source code - under copyright law, unless
such freedom is granted by a license.

Stop being such an idiot, Tyler. From "Understanding Open Source and
Free Software Licensing":
(Chapter 6: Legal Impacts of Open Source and Free Software Licensing)


It seems to agree that open source licenses - giving the example
of the MIT license - are unenforcable by contract law:

``Nonetheless, the absence of affirmative consent (such as
  clicking on a text box as required by the “clickwrap” license)
  is troubling to courts, and correctly so. It seems unfair to
  enforce terms of a contract to which one of the parties has
  done nothing to positively affirm.

  This issue has obvious application to the open source and
  free software licenses already discussed. Staying with the
  MIT License, say, for example, that an ordinary user comes
  across a piece of code that is subject to this license.
  The user takes the code and uses it on his personal computer.
  The user incorporates the code into a program that he is
  writing. The user distributes the program, either for profit
  or not. At no point has the user taken any affirmative,
  symbolic action that would indicate his consent to the terms
  of the license that is comparable to the act of signing a

That's why the open source licenses do not rely on contract law,
and instead offer licenses - which the user does not have to
agree to.

``The word 'license' has, and has had for hundreds of years, a
  specific technical meaning in the law of property. A license
  is a unilateral permission to use someone else's property. [...]

  A contract, on the other hand, is an exchange of obligations,
  either of promises for promises or of promises of future
  performance for present performance or payment.''


The case we are discussing is not about whether licenses are
some type of one-sided contract.  It is about whether to apply
the *remedies* of copyright law or contract law in the case of a particular license breach. Copyright law permits preliminary injunctions to prevent further distribution as a possible
remedy - while contract law does not.  That there is a
distinction between the two legal areas is given:

Copyright violation: preliminary injunction;
Contract violation: no preliminary injunction.
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