Licensing myths (was Re: [linux-elitists] The breadth of SCO's claims)

Karsten M. Self
Fri Jul 4 16:25:05 PDT 2003

on Sat, Jun 28, 2003 at 12:50:23AM -0700, Rick Moen ( wrote:
> I've had to be away for a few days, and am just now catching up on an
> avalanche of mail, but I have to comment, here:
> Quoting Aaron Sherman (
> > 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.

More specifically:  a license is a grant of reserved rights.  From
Black's Law Dictionary:

    A revocable permission to comit some act that would otherwise be
    unlawful.  The certificate or document evidencing such permission.

A contract is:

   An agreement between two or more parties creating obligations that
   are enforceable or otherwise recognizable at law.  

There are those who've argued that the GNU GPL is an _adhesion contract_
-- essentially a take-it-or-leave-it contract, similar to what you'd get
from a parking lot, a laundry, or a ferry service (in fact, case law
cites these three examples).  Unsuprisingly, the key paper on this topic
is authored by a Microsoft lawyer, Robert W. Gomulkiewicz


A list of related references is maintained by the FSF:


Karsten M. Self <>
 What Part of "Gestalt" don't you understand?
   There is no K5 Cabal:
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