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Re: issues with the AGPL

On Wed, 25 Mar 2009 01:57:11 +0100
Miriam Ruiz <little.miry@gmail.com> wrote:

> 2009/3/25 Sean Kellogg <skellogg@gmail.com>:
> > On Tuesday 24 March 2009 05:22:34 pm Greg Harris wrote:
> >> > 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.
> > 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.
> All that is for USA, right? Do you know whether it works that way in
> other countries than USA, and probably UK, Canada and Australia too?
> Greetings,
> Miry
The broad point about "what is a contract" applies to jurisdictions
based on the English common law development and is not likely to differ
in material application in jurisdictions with a civil code history.
Statutory differences may crop up here and there (among states within
the US there may be technical differences about shrinkwrap EULAs). 

The more important point is that when a court must determine the
meaning of language in a software license it will use the same tools
and reasoning that it applies to contracts generally.

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