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

Karsten M. Self kmself@ix.netcom.com
Fri Jul 4 16:25:05 PDT 2003


on Sat, Jun 28, 2003 at 12:50:23AM -0700, Rick Moen (rick@linuxmafia.com) 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 (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.

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

See:

    http://www.sims.berkeley.edu/academics/courses/is235/f01/
    http://www.2bGuide.com/docs/HCUL.doc


A list of related references is maintained by the FSF:  

    http://www.gnu.org/doc/bibliography.html

Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
   There is no K5 Cabal:  http://www.kuro5hin.org/
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