Re: issues with the AGPL
On Sat, 22 Aug 2009 14:17:49 -0700
Chris Harshman <rch@packetlaw.com> wrote:
> On Sat, 2009-08-22 at 12:43 -0700, Steve Langasek wrote:
> > On Sat, Aug 22, 2009 at 02:31:38PM +0200, Florian Weimer wrote:
> >
> > > > 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?
> >
> > > There is no such thing as a unilateral contract in Germany.
> >
> > There's no such thing as a unilateral contract anywhere else
> > either. A license is not a contract.
>
> There's an excellent discussion on the finer points of this
> distinction (albeit under U.S. law) in Jacobsen v. Katzer, 535 F.3d
> 1373 (Fed. Cir. 2008). I have the opinion if anyone wants to read it
> (not sure how accessible it is outside a legal research database
> subscription).
>
>
>
>
The full opinion can be found at either of these:
http://www.altlaw.org/v1/cases/1667254
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
JMRI has a summary of their case and collect many of the related
documents at http://jmri.sourceforge.net/k/index.html.
The arguments and conclusions are quite technical. (Is the license term
a condition that restricts the scope of what was granted or a covenant
that was a more general term of the contract?) A crucial (and barely
explained) starting point for the legal analysis is that software
licenses are a variety of contracts and are governed by principles of
contract law. (Jacobsen's lawyer argued, as one alternative, that no
contract had been formed,
http://jmri.sourceforge.net/k/docket/cafc-pi-1/AppellantsBrief.pdf, a
conclusion the court did not accept.) The important thing about the
decision was that the court found Jacobsen could pursue a _remedy_ for
the breach of the license both under general contract law and under
copyright law. Copyright law gives licensors certain remedies in
addition to those they would have under general contract law.
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