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Re: Contracts and licenses

Brian Thomas Sniffen <bts@alum.mit.edu> wrote:
> In any case, in the US a contract has a few requirements inconsistent
> with a free license:

This, by the way, is the kind of thing that should be talked about.

Still, I am not clear on why these things *must* be non-free.

> * A meeting of minds: the license issuer need never receive
>   communication from the licensee, so how can there be meeting of the
>   minds?

That's an interesting requirement that is apparently different in
different countries; in some places, it seems, you can post an offer,
and then people can take you up on that offer and forrm a contract with
you even though the communication was one-directional.

Aside from that, I would think it would be free if the basis of this
"meeting of minds" requirement were the communication with the guy
giving you the software.  So long as I can pass on the software, and the
receivers can pass it on transitively, so what if we theoretically form
a new contract at each step of the way?  DFSG 7 talks about this kind of
situation, but I don't know if that is what DFSG 7 has in mind.  This
situation does *seam* to be free and open source to me.

> * A consideration: if the license document specifies consideration to
>   the licensor, the license can't be free.

Certainly it's a problem if the consideration is sending $1000 to the
author.  However, DFSG1 says merely that you cannot charge a royalty or
fee; it does not say that you must require nothing at all, if I am
reading it correctly.  Consider two cases where a required consideration
might still leave the license agreement being free.

First, the consideration may be something completely acceptible for a
free software license, e.g. "you will include source code with any
distribution of the program."  This may be less trivial than it sounds:
the agreement may grant you full rights but then say you are obligated
not to use them all.

More interestingly, the consideration might be really minor.  Suppose it
says "you must email the author before distributing a modified version,
provided that sending one email is free for you."  This is certainly
annoying, but it's very minor and it seems to fit DFSG.

Lex NotALawyer Spoon

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