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Re: Contracts and licenses

Humberto Massa <humberto.massa@almg.gov.br> writes:

> @ 28/06/2004 15:38 : wrote Brian Thomas Sniffen :
>  >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.
>  >
> Anyway, it depends on your jurisdiction. Here in Brasil, *every*
> software license is a contract, and is ruled, aside from the
> dispositions in Copyright Law (9.610/98) and Computer Programs Law
> (9.609/98), to Contract Law and the Civil Code.

So something as simple as the MIT/X11 license -- "I grant to you a
license to make derivative works of this work, and to trade in them
and it without restriction" is a contract?  Gosh.  How can I enforce
it against you?

If I issue a license as my example above, but appending "provided you
wear yellow underpants," and then discover that you have distributed
copies of the software without wearing yellow underpants, can I
enforce the contract against you and obtain damages or your
performance of the underpants-wearing?  Or do I go after you for
infringing my copyright?  

> So, here, basically it's legally binding a license "contract" that
> says you can only *use* the program or the data generated by it if
> you are wearing yellow underpants (not really, but almost).
>  >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.
>  >
> IRT jurisdicions like ours where, every license is only granted by
> contract, where do you stand?

It may not be possible to have free software in such jurisdictions.  I
don't understand their laws well enough to say that it's impossible --
indeed, the other messages you've sent about a universal right to make
any copies necessary for operation imply it's not possible to have
*unfree* software there.

Brian Sniffen                                       bts@alum.mit.edu

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