On Tue, 24 Mar 2009 17:46:59 -0700 Sean Kellogg <[email protected]> wrote:
> On Tuesday 24 March 2009 05:22:34 pm Greg Harris wrote: > > On Wed, 25 Mar 2009 09:51:14 +1100 > > Ben Finney <[email protected]> wrote: > > > > > Greg Harris <[email protected]> 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 > -- To UNSUBSCRIBE, email to [email protected] with a subject of "unsubscribe". Trouble? Contact [email protected]
