Subject: Re: Silly question: are usage restrictions covered by the OSD?
From: Rick Moen <>
Date: Fri, 17 Oct 2003 15:01:45 -0700

Quoting Brian Behlendorf (

> At any rate, it's been said by lawyers on this list that licenses like the
> GPL would probably be evaluated as contracts by a judge, not just as
> copyright licenses.

Certainly, a judge would examine the situation to see whether a valid
contract has been formed, if only out of habit.  But that is a separate
question from whether a pure copyright licence is legally tenable --
which I believe is still an open question, not having been ruled on.
(The Progress Software Corp. v. MySQL AB case came close, hinting in
the court's preliminary injuction at what in the software world
qualifies as a "derivative work", but was settled before the larger
question of copyright licence validity could be settled.)

My point is that acknowledging lawyers' spinal instinct to check every
human interaction for the required elements of contract[1] still begs
the question of whether the GPL (like other copyright licences) is valid
entirely irrespective of whether it's a valid contract.

> Many open source licenses contain provisions that affect use - the
> patent termination clause in the APSL, for example (paraphrased, your
> right to *use* APSL software is gone if you file a patent claim
> against Apple). 

Of course, Prof. Moglen has pointed out that (in connection with various
wild claims to the contrary from SCO Group), at least in most
jurisdictions, you don't need a licence to _use_ software in the first
place.  So, unless I'm missing something big, that question looks mostly
moot, to me.

[1] Digging into my old notes on contract law, here's what I remember
from common-law (and UCC?) required contract elements.  The problematic
one for open source software is agreement, the validity of which has
tended to rest on a series of shrink-wrap licence cases, which have been
variously decided -- one of the motives for the now-mostly-dead-I-hope
UCC2B and UCITA efforts.  

  Offer.  This entails:
    Quantity (what is being exchanged)
    Time (when the contract must be performed)
    Identification of parties
    Subject matter (what is the person making the offer willing to give)
      (Additionally, there must be serious intent to enter into a bargain, and
      certainty and definiteness of terms.)
  Acceptance.  This entails:
    Serious intent to be bound.
    Communication to offeror.
      (Offer and acceptance jointly establish privity of contract.)
Capacity (of offeror and offeree).
Lawful purpose.
Genuineness of assent (no fraud, duress, undue influence).
Form (i.e., some kinds of contract must be of written form).

Cheers,               "All persons, living and dead, are purely coincidental,
Rick Moen             and should not be construed."                                -- Kurt Vonnegut, Jr.
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