Re: issues with the AGPL
On Tue, 24 Mar 2009 17:46:59 -0700
Sean Kellogg <skellogg@gmail.com> wrote:
> 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).
Exactly right. You might sometimes run across court decisions that
distinguish a contract from a "mere license" based on the absence of
"consideration" (which typically involves a payment of money, but may
take other forms).
Another arcane (but completely useless) example occurs to me: if M
revokes 007's license to kill, Bond does not have a claim for breach of
contract.
>
> 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
>
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