Subject: RE: Contracts vs. bare licenses (was RE: Change ot topic, back to OVPL)
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Thu, 25 Aug 2005 08:40:17 -0700

> I'm very confused by this. I quote from the top of p181 of your book:
> 	"Both the OSL and the AFL are unilateral contracts."

I'm sorry for the confusion. 

The OSL and AFL are *worded* to be unilateral contracts rather than
bilateral contracts.

But they are not contracts until the formalities of contract formation
(particularl assent) are completed. Until then they are bare licenses.

I have argued before that contracts have additional enforcement options than
bare licenses. That's why I put the "Acceptance and Termination" section
into the OSL/AFL. I want to encourage the formation of contracts, and thus
to encourage licensors to design "I ACCEPT" buttons or other mechanisms to
obtain assent. But such steps are defined to be those "reasonable under the
circumstances" to deal with situations where obtaining assent is simply not
possible.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]
 
 

> -----Original Message-----
> From: Alex Bligh [mailto:alex@alex.org.uk] 
> Sent: Thursday, August 25, 2005 3:13 AM
> To: lrosen@rosenlaw.com; license-discuss@opensource.org
> Cc: Alex Bligh
> Subject: Contracts vs. bare licenses (was RE: Change ot 
> topic, back to OVPL)
> 
> Larry,
> 
> --On 24 August 2005 17:25 -0700 Lawrence Rosen 
> <lrosen@rosenlaw.com> wrote:
> 
> > 1) The OSL is a license, not a contract. If you want a 
> contract out of 
> > the OSL or the OVPL or any other license, you generally 
> need to get assent.
> > That's what turns it into a contract. So don't distinguish the OSL 
> > from other licenses on that basis. Any license without assent is 
> > probably just a bare license.
> 
> Let's just put aside the OVPL for a moment (hence I'm 
> replying to your email in two separate threads).
> 
> I'm very confused by this. I quote from the top of p181 of your book:
> 	"Both the OSL and the AFL are unilateral contracts."
> 
> Obviously one obligation of the offeror under such a 
> unilateral contract is, conditional upon acceptance by any 
> offeree (which in general can be
> anyone) and their compliance with any conditions therein, to 
> grant a licence to the accepting offeree. But the "license" 
> document seems to me to be a promise to grant a license, 
> subject to various conditions. As you spend a long time 
> pointing out in your book, in order for there to be a 
> contract, the license has to be framed in terms of offer, 
> acceptance & consideration. You go on to describe why the AFL 
> and OSL are framed that way, as opposed to bare licenses such 
> as the GPL and MPL (and, though it's not mentioned in your 
> book, the CDDL).
> 
> The reason I'm curious (and thus not just trying to pick 
> holes in what you said) is that we seriously considered 
> framing the OVPL in contractual terms (which would have 
> involved adding a contractual framework like the OSL on top 
> of the CDDL). We didn't, because despite its attractions from 
> an enforcement point of view, we wanted to keep changes to a minimum.
> 
> Alex