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Re: Draft Summary: MPL is not DFSG free

Bernhard R. Link wrote:
* Andreas Barth <aba@not.so.argh.org> [040613 13:16]:
Not true at all.  The GPL, for example, is not a valid contract.
Neither is the MIT/X11 license.

Please abstract from your own legal system. In some legal systems, the
GPL or the MIT/X11 license is a contract, in others not.

Only in the sense that the German system has a contract as most basic
operation of law, while other system (especially those where the word
contract is actually used) have a contract as relatively high contruct
and distinguish between contracts and non-contracts.

IANAL, but I think you are mixing up "Vertrag" (contract) und "Willenserklaerung" (expression/declaration of will/intent) here, which is more basic.

As I understand German law, a contract between N parties is formed simply by each of them uttering agreeing declarations of intent. In the simple case of two parties, the declaration first uttered is called application or offer ("Antrag" or "Angebot"), the second one acceptance ("Annahme").

These utterances can take different forms. They can, for example, be written and signed (possibly in front of a notary pulic), just spoken, or merely implied by conclusive action. (Depending on the contract matter, the law may prescribe certain forms, though.)

Given the right context, a simple dialog like "Please have a sandwich!", "Yes, thanks!" can form a contract, as can the simple giving and taking of the sandwich, or a mix of the forms. (Depending on the intentions on the parties, the sandwich could have been gifted or sold.)

A public licence like the GPL is then the offer (or application) to form a two-party contract, extended to everybody. Anybody can then accept the offer/application and thus conclude a separate two-party contract with the licensor. Conclusive action implying acceptance could indeed be the redistributing of the software. A contract would not have been formed (but also not be necessary) until some suitable action on the part of the licensee at least implies acceptance.

What is special about the public license is that it is a true offer (binding on the licensor). Normal public advertising, although commonly called offer, would not be an actual (binding) offer in the legal sense, but just be an invitation for applications ("freibleibendes Angebot").

Apparently the systems in continental Europe are all similar, but the Anglo-Saxon system is different.


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