Re: OpenSSL and GPLed programs
----- Original Message -----
From: "Thomas Bushnell, BSG" <tb@becket.net>
To: "Chloe Hoffman" <chloehoffman@hotmail.com>
Cc: <debian-legal@lists.debian.org>
Sent: Thursday, June 21, 2001 2:06 PM
Subject: Re: OpenSSL and GPLed programs
> "Chloe Hoffman" <chloehoffman@hotmail.com> writes:
>
> > I don't see how "contract issues are entirely moot". Certainly at
> > least the terms of the license must be interpreted to determine if
> > they are complied with. AFAIK copyright law does not deal with such
> > issues. Rather contract law has a long established tradition for
> > interpreting and defining unilateral "contracts". I would be
> > interested to see cites otherwise. I am talking U.S. law here but
> > would be interested in laws of other countries as well.
>
> It's not a contract. It's a license. Your description of a long
> established tradition is entirely correct: it's the tradition of how
> to interpret grants of permission (which are operative in cases of
> copyright, trespass, and so forth). That tradition is *not* contract,
> and calling it "contract" again and again only serves to confuse the
> issue.
I am not sure I understand the significance of the difference here and what
"issue" I am confusing - perhaps you can enlighten me on your position.
Copyright infringement may occur whether you fail to comply with a license
or whether you breach a contract. Last I looked at Nimmer (the leading U.S.
treatise on copyright law) it pointed to contract law for license
interpretation.
>
> > Also, I am not convinced that most "open source" licenses are not
> > contracts.
>
> I don't know about "most". I know about particular ones, and they
> aren't.
Please name some so we have something to work from.
>
> > My view is that a good argument can be made that that a
> > licensee, in consideration for receiving the right to modify,
> > distribute, etc the code and in consideration for foregoing the right
> > to sue the licensor (limitation of liability) accepts the license
> > contract by modifying, distributing, etc. the code. Indeed if it were
> > otherwise, the limitation of liability would have no effect because
> > the public license model you propose is unilateral.
>
> The absence of any negotiation makes very clear that it isn't
> contract. The limitation of liability is defensible on entirely
> different grounds.
>
I am not sure of the relevance of negotiation. Persons enter into contracts
everyday without negotiation. I don't recall engaging in any negotiation as
I told the gas attendant to fill up my car on the way home from work today
or buying lunch today.
And what is the other theory of the defensibility of the limitation of
liability? I am honestly interested.
> > Well I think I know a little bit of law as an attorney. I hoped I was
> > providing useful information. I'd be happy to go away if you prefer.
>
> You seem out of your depth here. A tax attorney, for example, may be
> exceedingly good at his job and still be totally out of his depth when
> it comes to the details of the criminal law: a detective probably has
> a better knowledge of the elements of most serious crimes than does a
> tax attorney.
>
I am not sure why ad hominem is necessary. Point of fact I am an IP attorney
of over 8 years and have worked for most of that time in the computer
industry negotiating software and other licenses and providing other IP
advice as an inhouse attorney at several large computer software firms and
now in private practice. I don't profess and have never professed to be an
expert but I don't think I am out of my depth.
> I've been engaged in issues of free software IP law for over a decade,
> and I know the subject inside and out. And I'm not the only one on
> this list; there are many such.
>
I don't think I have ever cast any doubt on your abilities or knowledge or
anybody else. Just attempting to engage in some friendly debate. Perhaps
this thread has run its course.
> Thomas
>
>
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