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Re: issues with the AGPL

On Tuesday 24 March 2009 05:22:34 pm Greg Harris wrote:
> On Wed, 25 Mar 2009 09:51:14 +1100
> Ben Finney <ben+debian@benfinney.id.au> wrote:
> > Greg Harris <glharris@panix.com> writes:
> > 
> > > (It ought to be remembered that contracts (including licenses) …
> > 
> > Whoa. Since when is a copyright license considered a contract?
> > Contracts require multipartite negotiation; I can't negotiate the
> > terms of a software license in most cases.
> > 
> > Free-software licenses especially are (by definition) unilateral
> > grants of permission, so I can't see how you lump them under contract.
> > 
> Um, no. Software licenses are one instance of a class of unilateral
> contracts. Another instance is product warranties. Yet another class is
> a store's advertised prices for goods. There are others.
> In (somewhat) formal terms, the offeror proposes terms that the offeree
> may accept through some act of performance. Negotiation is not
> required. The parties need not engage in any communication at all. If
> you deposit the requisite coinage into a vending machine and a beverage
> is not delivered, the vendor has breached a contract with you. The
> warranty for your television is a contract. So are software licenses.
> In various disputes about shrink-wrapped EULAs, one of the issues was
> whether the consumer could have "accepted" the terms of the agreement
> without those terms being available before purchase of the box. At the
> other end of the spectrum, there are software licenses that are heavily
> negotiated and involve substantial monetary terms.

Mr. Harris here is correct, for *most* cases. There does exist, however, a hypothetical license which is NOT a contract... though you don't see them very often. This is where person A gives something to person B without any expectation from person B. This is a unilateral grant of permission and would not be enforceable as a contract for lack of consideration. However, the license is still good until such time as A withdraws the grant, which he could conceivably do at any time. It's no different than if I invite you into my house, which the court sees as a license to enter my property, converting the person from trespasser to invitee.... but I can kick that person out whenever I like. The moment we sign a lease (another form of contract) I lose that power because the contract grants the leasor the right to be on the premises and is enforceable (assuming I got something in the lease, like rent money).

In case anyone is wondering, the general point of view of law professor who write articles about such things is that the GPL *is* a contract, because it requires the recipient to forbear certain warranty rights.


Sean Kellogg
e: skellogg@gmail.com

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