Subject: RE: Contracts vs. bare licenses (was RE: Change ot topic, back to OVPL)
From: Alex Bligh <alex@alex.org.uk>
Date: Thu, 25 Aug 2005 16:58:39 +0100

Larry,

--On 25 August 2005 08:40 -0700 Lawrence Rosen <lrosen@rosenlaw.com> wrote:

>> 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.

OK. That's interesting. I think I am still missing one subtlety on the OSL
then.

In a situation where steps are not "reasonable under the circumstances"
(that sounds like a US specific phrase, but let's stick with it), does
the recipient (i.e. "You" in the contract) have
a) no license at all; or
b) a bare license

I had assumed from the wording of (9) in the OSL that unless and until the
putative licensee had accepted the terms of the license (including "by
exercising any of the rights granted to You in section 1, which I note does
not include the right to "use" which is presumably either implied or
unnecessary to grant), then there is no license. IE I had assumed the OSL
does not act as a bare license in the absence of acceptance, and (b) above
was the case.

I think what you are saying is that my assumption is incorrect, and the OSL
is designed to be enforceable as a bare license, but the copyright holder
may also (presumably arguing in the alternative) seek to show it is a
contract, and if they succeed, they have the normal remedies for breach
of contract.

If that's correct (i.e. if my assumption is wrong and (b) is the case),
what is the advantage of having the OSL work this way to the copyright
holder? If it was designed ONLY as a contract capable by acceptance
of conditionally granting a license (and did not also operate as a bare
license), then the copyright holder could argue when enforcing the license
(in response to a "not reasonable under the circumstances" argument from
the other party) that if so, there was no contract, and thus no license
at all, and thus the party is admittedly in breach of copyright (rather than
also having to show they are in breach of the bare license) - i.e. it
would take away an entire line of defence. This would not prejudice the
legitimate licensee, as if challenged by an aggressive licensor, they could
just confirm their acceptance of the terms.

I assumed the reason was because offers are (in general, unilateral offers
to the world being a little of a special case) capable of being withdrawn
before they are accepted, but IIRC similar things apply to licenses for
which consideration has not been received, and there is no consideration to
the licensor anyway until a license in (just) contract form would have been
accepted.

Re the "I accept" buttons, I am not sure how they apply to distributions in
source form which is the normal modus-operandi for *development* of
open-source projects - and it's generally those who have the source whom
one is worried may misuse it, isn't it? Hence (I had presumed) the
acceptance by conduct provision (referring to s.1).

Alex