Subject: Re: Legal soundness comes to open source distribution
From: Russell Nelson <>
Date: Tue, 13 Aug 2002 23:52:31 -0400 (EDT)

Carol A. Kunze writes:
 > Berstein says - "In the United States, once you own a copy of a
 > program, you can back it up, compile it, run it, and even modify it
 > as necessary, without permission from the copyright holder. See 17
 > USC 117. "
 > You have to OWN the copy.  When I say that in a proprietary license
 > the licensor reserves title to the copy, I am saying the licensor
 > takes the view that the user does not OWN the copy.

That's an interesting view, given that they take money for it.

 > The payment that is made is for a license to USE the software.  So
 > copyright rules that apply to OWNERS of copies do not apply if the
 > copy of the software is still owned by the licensor and merely
 > licensed to the user.  This is the legal theory under which a
 > proprietary licensor operates.

Anybody can make up a theory for something.  I have a theory that says 
that perpetual motion works.  I can't get any physicists to sign onto
that theory, though.  I hope that no judge is willing to sign onto
this legal theory.

 > I am not saying I think it should be this way, I am just explaining
 > the legal foundation for this approach.  It's the difference
 > between buying and renting a house.  If you buy a house you can do
 > what you want with it, if you rent it you only get the rights your
 > lease give you.

If I rent a house, the landlord wants it back.  If I buy a piece of
software, the putative "owner" of the copy of the software doesn't
care if I destroy the copy.  Pretty careless owner!

 > > They're not enforcable, at least as I understand it.
 > I'm afraid they are.

Click-wrap licenses?  They're more enforcable than shrink-wrap
licenses (which are unenforcable as I understand it)?

 > I still don't understand why there is this discussion about
 > clickwrap when OSI has already OKed licenses which are contracts.

The discussion is over whether we should be ambiguous about whether
the contract has been executed, or whether we should allow a license
to require an acceptance ritual.

 > I still do not understand why the OSI definition would have to
 > change.

Oh, it's *always* had to be changed.  Anybody could insert
restrictions on use into a license and ask us to approve it.  Since
the OSD says nothing about a license not being allowed to have
restrictions on use, we would have to approve the license.

-russ nelson     |
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