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Re: Contracts and licenses

Brian Thomas Sniffen <bts@alum.mit.edu> wrote:
> > 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.

That is not exactly my argument:  I think you have to agree to a license
agreement before you gain the included license, and I also think a
license agreement can perfectly well make requirements on both parties
while still being a license agreement.  A license agreement thus has the
same properties as a contract in general.

The nitpick is on whether the obligations of GPL kick in immediately
upon accepting it or only after accepting it and further deciding to
actually use one of the granted licenses.  Nitpick aside, the point is
that there is not a pure grant here and further the grantee has some

> > 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.

Thus, you have disagreed with 3b of GPL, correct?  3b clearly says you
must make the source available  I don't see how what you have done is
legal, unless you have some other license agreement *other than* GPL.

Interpreting GPL as a full, unfettered grant seems to me, at the very
least, a questionable interpretation that is not widely shared.  Most
people seem to think that you do, in fact, have to redistribute source
code when you redistribute a GPL'ed work.

> 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.

Apparently you have not, but failing such agreement, I don't see how you
gain the right to redisribute binaries or code or to even *use* the code
in question.

> > 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.

That is unusual.  Right now, for example, I see a thread stating "MPL is
non-free".  It does not state "the license granted by MPL is non-free". 
Moreover, I hardly ever see anyone talking like that.

(And I don't think they should!)

> > 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.

You even disagree about GPL saying you have to accept it?  Here is
clause 5:

  5. You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission to modify or
distribute the Program or its derivative works.  These actions are
prohibited by law if you do not accept this License.  [...]

RMS and his lawyers seem to really think you have to agree to GPL.

> 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
> relevant.

This is getting towards the really important matter, but because of the
way you describe it I am not sure what you are getting at.  What do you
mean by "only by contract"?  Suppose I do have a written agreement with
the author that I may use and redistribute a work in any way whatsoever
and that anyone I distribute it to gains those rights as well; does that
make the software non-free?  I think not.

Besides being an odd place to draw the line, there are other problems
with this contract vs. non-contract discussion:

	1. There aren't so many real lawyers, if any, on debian-legal.  We are
the last people that should be standing on very fine shades of legal
	2. Not everyone on the list is under US jurisdiction, and thus the
meanings of the terms will shift somewhat in other countries.

I am sure people are getting at an important matter, and so I would like
if people can find a way to state it clearly.  I am not certain I agree
with the proposal, but before I can properly debate it I have to know
what people are in fact talking about. 


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