Subject: Re: Legal soundness comes to open source distribution
From: Russell Nelson <nelson@crynwr.com>
Date: Mon, 12 Aug 2002 17:59:18 -0400 (EDT)

[ Catching up on mail from ten days ago ]

Carol A. Kunze writes:
 > Here is the theoretical difference between proprietary and traditional (GPL,
 > BSD) free software.   With the former the user agrees to a license and does
 > not get title to the copy of the program.  Without agreeing to the license
 > (and the use restrictions in it), the user has no legal right to use the
 > copy of the software that they possess but do not own.  Basically, its a
 > license transaction where the user has no ownership in the copy of the
 > software they possess.

My understanding is that, if you have legally acquired a copy of the
software, you have the right to run it.  http://cr.yp.to/softwarelaw.html
Absent a contract otherwise, a user can do anything they want to their 
copy, including use it, modify it, give it away, or resell it to
someone else.

So why form a contract, then?  To get a warranty disclaimer.  To get
the recipient to agree that they lose their patent grant if they sue
for patent infringement.

If we can get those things without a contract, that would be a perfect 
world.

 > > The question here is whether we should amend the Open Source
 > > Definition so that it is clear whether click-wrap licenses are
 > > allowable or not.  We could go either way, but we want to hear from
 > > you first.  Your opinions solicited, and engaged!
 > 
 > OSI has already blessed licenses which are intended to be agreements or
 > contracts (see IBM license), so I'm confused about what the point is
 > here.    And why OSI definition would have to change.  Am I missing
 > something?

They're not enforcable, at least as I understand it.

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