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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 17:11:39 GMT
User-agent: Thunderbird 2.0a1 (Windows/20060724)

Alexander Terekhov wrote:
Tim Tyler wrote:

    (Chapter 6: Legal Impacts of Open Source and Free Software Licensing)

 ``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

In the case of open source and free software licenses, the "user"
> manifests assent by simply taking action(s) reserved to copyright
> owners.

They most certainly do not!

*If* the user agreed to a contract by simply copying,
the world would be full of court cases where
SlimeSoft had included in the small print of its
license agreement:

"And by the act of copying this software, you hereby
 agree to sell all your worldly goods and deposit the
 proceeds in swiss bank account #xxxxxxxx."

Users do not agree to *anything* by the act of
copying something.  The worst that can happen
is that they can subsequently be sued for copyright
violation - since the user can simply claim that they
never bothered to read the license.  Since copyright
violation is such a frequently-performed crime, the
remedies are usually limited to something rather less
than "all your worldly goods" - which is what might
be on the table if they had /actually/ entered into
a binding contract.
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