Calling an open source license a gift is nice semantics, but I am unsure what else that description gets us...
Try asking yourself what is the remedy for breach/violation of an open source license that the copyright holder/licensor can pursue? In answering the question, it is not enough to say that no one will violate the license; I am asking a "what if" question (and, truth be told, open source licenses occasionally are violated). Not to ask and answer my own question, but I suspect the answer will be that the open source licensor/copyright holder will seek the same remedy as anyone else; namely, the copyright holder will enforce his or her copyright license. If so, there are obvious questions that the court will have to answer, which may include the mutual assent issue, if litigation is the route to remedy. I understand the desire to develop of a habit and practice that might ultimately impact the resolution of legal rights in the somewhat-distant future, but I do not understand the persistent inclination to ignore how courts have viewed these issues in the past, and likely will do so for some time in the future. Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 ----- Original Message ----- From: "Russell Nelson" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Saturday, October 26, 2002 1:01 PM Subject: RE: a proposed change to the OSD > Lawrence E. Rosen writes: > > the courts are clear about the importance of such notices for > > contract formation. > > What attributes of a license make a contract necessary? I know that > you need a contract to disclaim warranties, but I'm not sure that it's > necessary to disclaim a warranty on a gift. > > > I'll change my mind about this only after you succeed in changing > > the law. > > That's what I'm trying to do. I have mostly contempt for legislators, > but judges and lawyers form law in a much wiser manner. There isn't > an awful lot of precedent in regards the distribution of free > software, and what precedent exists is only on a District level. I > believe that, by codifying existing practice, we can change the law -- > or at least affect judge's decisions. > > At the end of the day, Larry, the community doesn't want to use > software for which it has to contract to use. Since it's our job as > an industry advocacy group to encourage the production and use of open > source software, it's our responsibility to tell the producers of open > soruce that the users of open source aren't going to contract for its > use. > > -- > -russ nelson http://russnelson.com | > Crynwr sells support for free software | PGPok | businesses persuade > 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce > Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
