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Re: Contracts and licenses

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

>> * 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.

That's why I'm restricting this to US-contracts -- I think the
translation of Civil Code obligations as "contract" is needlessly
confusing in this context.  So I'll try to say US-contract when I mean
the technical term, and obligation when I mean vertag, and we can
muddle through that way.

> 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.

Then the license is requiring me to form a (US-style) contract in
order to pass on the software, which is a non-free burden on me.  For
example, a requirement that I get everyone to whom I give the software
to agree to some EULA is non-free: they aren't copying or distributing
the software, just receiving a copy from me and executing it.

>> * 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.

It doesn't say monetary fee, just fee.  But let's look at the examples.

> 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.

That is not a fee.  That is a permission to distribute source+binary,
where previously I had no permission to distribute binaries at all.
Would it be more liberating to give me permission to distribute binary
alone? Sure, but this is still a free license.

I'm not doing anything to provide consideration to the author.

> 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.

That's at the very least a lawyerbomb -- what does "free" mean, and if
I have no-money-required e-mail but I live in North Korea and will be
tortured for using free software, is that free?

But either sending e-mail is free, so I must send it, which means this
is consideration, so it has value, so it isn't free, so I don't have

...or sending e-mail is free, so this isn't consideration, so it isn't
a US-contract

...or sending e-mail isn't free, so there's no consideration, so this
isn't a US-contract.

In any case, this fails the desert island test and chinese dissident test.

Brian Sniffen                                       bts@alum.mit.edu

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