Open source licenses are /actually/ contracts?!?
Tim Tyler
"Model train software spat threatens future of open source
Throws copyrights from the train"
http://www.theregister.co.uk/2007/08/24/open_source_railroad/
--
__________
|im |yler http://timtyler.org/ t...@tt1lock.org Remove lock to reply.
rjack
> An amazing ruling - if it is upheld:
>
> "Model train software spat threatens future of open source Throws
> copyrights from the train"
>
> http://www.theregister.co.uk/2007/08/24/open_source_railroad/
Amazing????
Since the decision by the Supreme Court in De Forest Radio Telephone Co.
v. United States, 273 U.S. 236 (1927), intellectual property licenses
have been defined legally as contracts. So what's so amazing about
a Federal District Court following eighty years of uncontradicted
Supreme Court precedent?
Eben Moglen and Groklaw's spewing legal nonsense about the GPL not being
a contract are just that -- legal nonsense.
rjack
Tim Tyler
> Tim Tyler wrote:
>> An amazing ruling - if it is upheld:
>>
>> "Model train software spat threatens future of open source Throws
>> copyrights from the train"
>>
>> http://www.theregister.co.uk/2007/08/24/open_source_railroad/
>
> Amazing????
>
> Since the decision by the Supreme Court in De Forest Radio Telephone Co.
> v. United States, 273 U.S. 236 (1927), intellectual property licenses
> have been defined legally as contracts.
Didn't that case involve /actual/ contracts?
The cited page says "the contracts which were made exhibits".
> Eben Moglen and Groklaw's spewing legal nonsense about the GPL not being
> a contract are just that -- legal nonsense.
Software licenses are not normally considered to be contracts -
they are licenses - grants of freedom.
If they were contracts, you would have to sign them - to prove
that you had seen them, and had read them.
As the analysts seem to be saying, this is just a legal screw-up
by the judge of a district court:
http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html
Alexander Terekhov
Tim Tyler wrote:
[...]
> If they were contracts, you would have to sign them ...
You're misinformed, that is just one of many forms to manifest assent.
Assent may be manifested by written or spoken words, or by conduct. See
also
http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13269
(Re: conducting a sane and efficient GPLv3, LGPLv3 Review)
>
> As the analysts seem to be saying, this is just a legal screw-up
> by the judge of a district court:
>
> http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html
http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13638
((OT) - Major Blow to Copyleft Theory)
regards,
alexander.
--
"The revolution might take significantly longer than anticipated."
-- The GNU Monk Harald Welte
Alexander Terekhov
Tim Tyler wrote:
[...]
> If they were contracts, you would have to sign them ...
You're misinformed, that is just one of many forms to manifest assent.
Assent may be manifested by written or spoken words, or by conduct. See
also
http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13269
(Re: conducting a sane and efficient GPLv3, LGPLv3 Review)
>
> As the analysts seem to be saying, this is just a legal screw-up
> by the judge of a district court:
>
>
http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html
http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13638
Tim Tyler
> Tim Tyler wrote:
>> If they were contracts, you would have to sign them ...
>
> You're misinformed, that is just one of many forms to manifest assent.
> Assent may be manifested by written or spoken words, or by conduct. See
> also
>
> http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13269
> (Re: conducting a sane and efficient GPLv3, LGPLv3 Review)
Right - but surely you get the point: a license doesn't
take away any freedoms of the recipient - therefore
the recipient does not need to assent to it - therefore there
is no need to prove that they did in any subsequent dispute.
Contracts are different - they are *agreements* between
the parties in question.
>> As the analysts seem to be saying, this is just a legal screw-up
>> by the judge of a district court:
>>
> http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html
>
> http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13638
> ((OT) - Major Blow to Copyleft Theory)
That's another article by you ;-)
Alexander Terekhov
Tim Tyler wrote:
>
> Alexander Terekhov wrote:
> > Tim Tyler wrote:
>
> >> If they were contracts, you would have to sign them ...
> >
> > You're misinformed, that is just one of many forms to manifest assent.
> > Assent may be manifested by written or spoken words, or by conduct. See
> > also
> >
> > http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13269
> > (Re: conducting a sane and efficient GPLv3, LGPLv3 Review)
>
> Right - but surely you get the point: a license doesn't
> take away any freedoms of the recipient - therefore
Which license are you talking about? The [L]GPL (both 2 and 3)
purports to impose a whole bunch of covenants ("conditions" but
not "conditions precedent") upon licensees. See, for example
http://www.actonline.org/library/GPLv3-Contract-or-Copyright.html
Tim Tyler
> Tim Tyler wrote:
>> Alexander Terekhov wrote:
>>> Tim Tyler wrote:
>>>> If they were contracts, you would have to sign them ...
>>> You're misinformed, that is just one of many forms to manifest assent.
>>> Assent may be manifested by written or spoken words, or by conduct. See
>>> also
>>>
>>> http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:13269
>>> (Re: conducting a sane and efficient GPLv3, LGPLv3 Review)
>> Right - but surely you get the point: a license doesn't
>> take away any freedoms of the recipient - therefore
>
> Which license are you talking about?
E.g.
http://www.opensource.org/licenses/alphabetical
> The [L]GPL (both 2 and 3) purports to impose a whole bunch
> of covenants ("conditions" but not "conditions precedent")
> upon licensees.
No it doesn't.
The term "covenant" occurrs once in:
http://www.gnu.org/licenses/gpl.txt
...where it refers to patent licenses.
A condition is not a covenant.
The "Disclaimer of Warranty" and "Limitation of Liability"
/might/ be regarded as taking away the recipients' rights.
I am not clear about what legal force - if any - those
paragraphs have. Indeed, I doubt they have any legal
force - since there is no obligation to read the license,
*especially* if you are not copying the software.
Are there any precidents for free software authors being
successfully sued over supposedly-implied warranties
on their software?
Alexander Terekhov
Tim Tyler wrote:
[...]
> > The [L]GPL (both 2 and 3) purports to impose a whole bunch
> > of covenants ("conditions" but not "conditions precedent")
> > upon licensees.
>
> No it doesn't.
>
> The term "covenant" occurrs once in:
>
> http://www.gnu.org/licenses/gpl.txt
>
> ...where it refers to patent licenses.
>
> A condition is not a covenant.
"Regardless of what server hosts the Corresponding Source, you remain
obligated to ensure that it is available for as long as needed to
satisfy these requirements."
How on earth could this "condition" bind me to "remain obligated" if it
isn't a covenant imposed on me?
Tim Tyler
> Which license are you talking about? The [L]GPL (both 2 and 3)
> purports to impose a whole bunch of covenants ("conditions" but
> not "conditions precedent") upon licensees. See, for example
>
> http://www.actonline.org/library/GPLv3-Contract-or-Copyright.html
"Accordingly, the FSF drafted Paragraph 4 to require the automatic grant
of a license to all recipients of a covered work if they “convey, or
propagate by procuring conveyance of, a covered work.” The flaw in this
provision is two-fold. First, Paragraph 4 is a contract term, not a
license term. Because Microsoft and companies like them are not parties
to the contract, they are not bound by it."
This seems like a straw man to me.
This section is not aimed at Microsoft. It is aimed at Novell.
That impacts Microsoft indirectly - it makes companies
like Novell think twice before entering into patent
covenants with them - since such covenants are likely
to conflict with the wish to distribute GPLv3'd software.
Novell /is/ bound by the license - if it distributes GPLv3'd
software.
Tim Tyler
> Tim Tyler wrote:
[...]
>>> The [L]GPL (both 2 and 3) purports to impose a whole bunch
>>> of covenants ("conditions" but not "conditions precedent")
>>> upon licensees.
>>
>> No it doesn't.
[...]
> "Regardless of what server hosts the Corresponding Source, you remain
> obligated to ensure that it is available for as long as needed to
> satisfy these requirements."
>
> How on earth could this "condition" bind me to "remain obligated" if it
> isn't a covenant imposed on me?
It's not "imposed on you": you need not comply - if you do not
redistribute the software. If you do this, it is of your own
free will.
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.
Alexander Terekhov
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":
http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
(Chapter 6: Legal Impacts of Open Source and Free Software Licensing)
-----
Entering Contracts
Any contract between two or more persons rests on two fundamental
assumptions: one, that there is some mutual obligation created by the
agreement, which is known as the consideration; and two, that there is
mutual consent, or a meeting of the minds, as to the terms of the
contract, usually described as the offer and the acceptance. Once an
offer that involves the exchange of consideration has been made and
accepted, an enforceable contract is created. This principle is, of
course, subject to numerous exceptions.
[...]
Even the most unrestrictive open source license imposes at least a
minimal obligation ensuring that consideration in the legal sense is
exchanged and an enforceable contract is created through the license.
The MIT License, described in Chapter 2, imposes the following
restriction on licensees: The above copyright notice and this permission
notice shall be included in all copies or substantial portions of the
Software.
While this obligation is not onerous, it is real, and failure to abide
by it constitutes a breach of the contract. By extension, the more
onerous restrictions imposed by the GPL, the BSD, the Apache, and all of
the other open source and free software licenses already described
impose sufficient obligations so as not to fail as contracts for lack of
consideration. The licensor grants a real benefit, the right to use the
licensed software, and the licensee agrees to genuine restrictions,
i.e., those that are expressed in the license.
-----
Tim Tyler
> 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":
>
> http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
> (Chapter 6: Legal Impacts of Open Source and Free Software Licensing)
[snip]
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
contract.''
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.''
- http://lwn.net/Articles/61292/
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.
Tim Tyler
These guys have stripped out the header notices - can't they get
them under the DMCA copyright law?
``Provision 4: Removing copyright management information
------------------------------------------------------
The fourth provision bans the alteration of copyright management
information or providing false copyright management information.
Copyright management information is information conveyed in
connection with a copyrighted work for the purposes of identifying
its origin; such information could include the title, author, name
of the copyright owner, terms and conditions for use of the work,
and identifying numbers or symbols referring to the above information.
This does not include information about the user of a work or a
copy of the work. The copyright management information is like
serial numbers on commercial products such as computers or cars.
This provision prevents a user from altering this information
prior to passing the copyrighted materials on to others.''
http://depts.washington.edu/uwcopy/Copyright_Law/DMCA/Provisions.php
Alexander Terekhov
In the case of open source and free software licenses, the "user" manifests assent by simply taking action(s) reserved to copyright owners.
>
> That's why the open source licenses do not rely on contract law,
[... more Moglen's and PJ's bullshit ...]
An intellectual property license is a contract. In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003) ("If a breach of contract (and a copyright license is just a type of contract) . . . "); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) ("Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law'").
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fed&%20navby=case&no=991431
"A license is governed by the laws of contract."
But feel free to believe that the entire US federal judiciary is just a bunch of narrow-minded fools in denial of Moglen's genius and that they all should go and keep taking SFLC's seminars until they finally get his "not a contract" theory.
> Copyright violation: preliminary injunction;
> Contract violation: no preliminary injunction.
Sort of. :-)
http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
("With respect to the General Public License...")
The standard for PI under copyright infringement claim includes presumption of irreparable harm. The judge didn't apply it (and used a contract standard instead). Note also "portion breach of contract claim" and "didn't cure the breach" wording (one just can't "cure" a copyright violation). Finally, that decision is tagged as "Nature of Suit: 190" and that's neither 820/840 nor 190/820/840 (all three).
http://pacer.psc.uscourts.gov/documents/natsuit.pdf
190 is CONTRACT/Other Contract
820 is PROPERTY RIGHTS/Copyrights
840 is PROPERTY RIGHTS/Trademark
Tim Tyler
http://jmri.sourceforge.net/k/docket/
The ruling:
http://jmri.sourceforge.net/k/docket/158.pdf
One bit not mentioned in the news stories:
Although Defendants represent that they have voluntarily ceased
all potentially infringing activities utilizing any of the
disputed material and although both parties conceded that the
disputed material is no longer of value (as of March 2007),
the Court cannot find as a matter of law that Defendants’ voluntary
termination of allegedly wrongful activity renders the motion for
preliminary injunction moot. “‘Voluntary cessation of challenged
conduct moots a case ... only if it is absolutely clear that the
alleged wrongful behavior would not reasonable be expected to recur.’”
Once a criminal, always a criminal ;-)
Tim Tyler
> Tim Tyler wrote:
Re: http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf
(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
>> contract.''
>
> 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.
Tim Tyler
> An intellectual property license is a contract. In re: Aimster Copyright Litigation,
> 334 F.3d 643, 644 (7th Cir. 2003) ("If a breach of contract (and a
copyright license
> is just a type of contract) . . . "); see also McCoy v. Mitsuboshi Cutlery, Inc.,
> 67 F.3d 917, 920 (Fed. Cir. 1995) ("Whether express or implied, a
license is a
> contract 'governed by ordinary principles of state contract law'").
>
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fed&%20navby=case&no=991431
>
> "A license is governed by the laws of contract."
>
> But feel free to believe that the entire US federal judiciary is just a
> bunch of narrow-minded fools in denial of Moglen's genius and that they
> all should go and keep taking SFLC's seminars until they finally get his
> "not a contract" theory.
Users can argue that they never agreed to the terms of any
license - and normally the copyright holder cannot prove otherwise.
If you want to view licenses as a type of contract, they are
a special type of contract where there is usually no evidence
that one party has signed or otherwise agreed to the terms -
and they can always use that in their defense if they need to.
There are many other differences from a regular contract - many of
them to do with the extent of damages that may be awarded.
Alexander Terekhov
Tim Tyler wrote:
[...]
> *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
Suppose that value of "your worldly goods" is less than damages for
copyright infringement. Why wouldn't you bring such license as a
defense to claim of copyright infringement? I certainly would.
Arnoud Engelfriet
> 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.
I agree with the principle, but the catch is that by using software
without agreeing to the license, you're probably willfully
infringing the copyright. If it's a registered copyright, that
means the statutory damages can run up to $150,000. I'd have to
sell my house if I got hit with that kind of sum.
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Arnoud blogt nu ook: http://blog.iusmentis.com/
Tim Tyler
> On 2007-08-28, Tim Tyler <seem...@cyberspace.org> wrote:
>> 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.
>
> I agree with the principle, but the catch is that by using software
> without agreeing to the license, you're probably willfully
> infringing the copyright. If it's a registered copyright, that
> means the statutory damages can run up to $150,000. I'd have to
> sell my house if I got hit with that kind of sum.
What proportion of OSS developers register their work with
the United States Copyright Office, I wonder.
Doesn't that involve a nonrefundable filing fee of
of $35 for each application?
Also, how often does $150,000 actually get awarded
in free software cases?
The article at the top seems to say that getting very much
in the way of damages is unlikely - since the cost of the
software is low:
http://www.theregister.co.uk/2007/08/24/open_source_railroad/page2.html
``For broken contracts, the remedy is damages - whatever it would
take to put the plaintiff in the position he would have been in
had the contract been fully performed. Since this is usually
money, many providers of open source software would get the
shaft, since they don't expect any remuneration for the copying
of the software.''
Tim Tyler
> Tim Tyler wrote:
>> *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. [...]
>
> Suppose that value of "your worldly goods" is less than damages for
> copyright infringement. Why wouldn't you bring such license as a
> defense to claim of copyright infringement? I certainly would.
Right - but suppose that things are the other way around -
and that SlimeSoft has to sue for copyright violation, and
then live with whatever the court awards them for this
evidently-terrible crime.
Alexander Terekhov
Feel free to disclaim to be a party to license contract and tell
the court that by taking action(s) reserved to copyright owners
you were willfully infringing copyright instead of assenting to
contract. Your choice.