[linux-elitists] The breadth of SCO's claims

Aaron Sherman ajs@ajs.com
Fri Jul 4 12:27:36 PDT 2003

On Sat, 2003-06-28 at 03:50, Rick Moen wrote:

> Quoting Aaron Sherman (ajs@ajs.com):
> > However, on the flip-side, licensing is just a contract.
> Nope.  Most proprietary software sales are structured as contracts, for
> sundry business reasons.  However, the BSD, GPL, LGPL, etc. licences
> operate not through contract law, but rather copyright law.

Every lawyer I've ever spoken to about software copyright and licensing
has always made it clear that a license *is* a contract. If copyright
law defines it as a non-contract, I've never seen that, and would be
open to it.

I think what you're snagging on here is this: The various licenses that
you list are OPTIONAL. You do not have to accept the terms of any of
them, and even if they said that you must, they cannot enforce that at

The reason that they work is that copyright law prevents you from
distributing or deriving your own works without a license to do so. That
license is very much a contract, and if it weren't you would not be able
to, for example, disclaim warranty at all. It's contract law that
governs that exchange of rights and obligations. It's copyright law that
makes the contract necessary in the first place.

> (All your extended stuff about "sub-licensing" seems to be based on the
> foregoing faulty premise, so I'll not comment further.)

Yes it was based on that premise, which as far as I understand, is a
correct premise.

As for privity, I think that's covered quite well in section 5 of the
GPL. You get to accept the terms of the GPL at any time, and if you do
not you don't get its benefits, but you're welcome to go down that road
if you wish.

As for consideration.... that's a very difficult one, and I've had that
conversation with non-lawyers, but never been brave enough to broach it
with a lawyer. I'm planning on writing an extensive essay on Open Source
licensing for people who are trying to decide how to license their
software, and I'll have to sit down with at least two different lawyers
and discusss that topic before I do. I already have someone lined up to
do the legal review after the fact.

My gut, under-educated feeling on that point is this: consideration is a
part of contract law because you were not supposed to be able to have
someone manipulate you into a contract that was against your best
wishes, and depirved you of your valuable assets (in this case,
copyright-based rights) without due consideration. Ok, that's fair and
in the simple case that consideration is some money, good or service of
equal value.

Open Source software is predicated on the idea that the VALUE associated
with software is actually in its distributiuon. We argue long and hard
that security is increased in this way, software quality is raised, etc.
If these things are true, then clearly we are deriving substantial value
and that value can be assessed just as an exchange of services would be.
Certainly we can argue that there is substantial enough benefit that
companies like IBM, Red Hat, HP, Sony and many others have all been
willing to contribute their value to Open Source projects at one time or

In that respect, I feel Open Source licensing meets the requirements of
contract law, but it's an idea that has never been tested, and is IMHO
the weakest aspect of such licensing.

Aaron Sherman <ajs@ajs.com>
Senior Systems Engineer and Toolsmith
"It's the sound of a satellite saying, 'get me down!'" -Shriekback

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