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Contracts and licenses

"Lex Spoon" <lex@cc.gatech.edu> writes:

> Brian Thomas Sniffen <bts@alum.mit.edu> wrote:
>> > Second, while acceptance alone does not obligate anything of you, some
>> > obligations do kick in if you try to use some of the rights you have
>> > been granted.  For example, if you take the option to distribute
>> > binaries of modifications and then post the source code separately, then
>> > you are *obliged* from then onwards to keep the source code available to
>> > whoever has received the binary distribution.
>> Not by the GPL, you're not.  You *are* obliged to  do so by the offer,
>> valid for three years, which you issued.  But not by the GPL.
> Yes, but that is a nitpick IMHO.  What good is an offer that you never
> plan to use?  If you prefer, call the relevent clause of GPL to be an
> offer of a contract, instead of being a contract itself.  It doesn't
> seem to change the essence of the debate.

A whole bunch of your argument was balanced on the claim that one had
to accept the GPL in order to receive the licenses it offers, because
it's a contract, and that it had to be a contract, because one had to
accept it to receive certain benefits.

I don't think either of those is true, and this is a good example of
why I think that.  Calling it a nitpick doesn't make it less of a
counterexample to your claims.

>> >  This is a restriction on
>> > your behavior, and that restriction has arisen because you agreed to the
>> > terms of the GPL.  You have gained the right to distribute binary-only
>> > copies, but in compensation you have agreed to post the source code
>> > somewhere.
>> Your last sentence is not found in the GPL, nor is anything like it.
> This is uncalled for.  You know that I am talking about Clause 3b
> because you referred to it above.

But you're not talking about anything like 3b.  I've written code and
licensed it under the GPL.  It incorporated other GPL'd works.  I
distributed it under 3b.  I do not expect to ever give the source to
anyone.  It would violate the contract under which I wrote and
licensed that code for me to post the source anywhere.

The one and only party to whom the binaries have been distributed has
that offer, and will likely never exercise it.  So I certainly haven't
agreed to post the source code somewhere or anywhere.

I acted within the terms of the license I was granted -- acceptance of
those terms and limits is not required.  I happened, in the course of
my actions, to do only things permitted by the GPL.  But if I violate
it tomorrow, I cannot be sued for breach of contract by the original
authors of the code I distributed -- only for copyright infringement.

>> In any case, even stipulating that this is a non-free path doesn't
>> validate your argument, since non-free paths through a license don't
>> reduce the freedom of the free paths.
> Right, but I was just objecting to saying that a license agreement is
> different from a contract.  I agree that a license is different from a
> license agreement, but what we are usually talking about on debian-legal
> are the agreements, not the licenses granted in those agreements.

No, actually, I'm usually talking about the licenses.

> In general, license agreements are really the same thing as contracts,
> even though in practice there is a big issue in determining whether both
> parties have really agreed.  GPL not only flat out states that you must
> agree to it before you can use it, but it includes paths that incur
> obligations on the receiver (posting source) even after they have
> stopped using the granted right (distributing binaries).

I don't think anything before the word "but" is true.  License
agreements are not contracts -- even the GPL is not, since I have not
offered or performed anything in exchange for receiving those
licenses.  The GPL does not state that I must agree to it before I can
use it, or that I must agree to it before I can use code licensed
to me under it.

> MJ Ray <mjr@dsl.pipex.com> wrote:
>> Does anything in this debate change whether MPL can be used for works 
>> in debian? If not, please change the subject.
> It is relevant, though the implications go beyond MPL.  At least one
> person has suggested that "contract implies non-free" and then argued
> that MPL is a contract and thus non-free.

And I'll continue to argue that a license granted only by contract is
non-free.  To the extent that applies to the MPL, it's certainly


Brian Sniffen                                       bts@alum.mit.edu

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