Subject: Interesting POV on free software licensing
From: "Karsten M. Self" <>
Date: Tue, 12 Oct 1999 06:26:11 +0000

Found this posted on the syllabus of a cyber law class being taught at
Berkeley this semester.

    Robert Gomulkiewicz, How Copyleft Uses License Rights To 
    Succeed in the Open Source Revolution and the Implications 
    for Article 2B, 36 Houston L. Rev. 179 (1999),

Much of the first two thirds is a recap of what free software and open
source are, and what they've accomplished.  I've exerpted what I think
are the more interesting sections, though I encourage reading this.

The basic point (never quite stated as such) is that free software
practices judo law -- turning what's ordinarily used to close off access
to instead insure it.  As such, the movement is, if not dependent on, at
least availing itself of the tools provided in copyright and shrinkwrap
licensing law and practice.

> A.      "Take-it-or-leave-it" Is Fundamental
> Use of mass-market licenses is crucial to software publishers.  
> Article 2B would validate most industry standard mass-market licensing 
> practices. As a result, however, Article 2B has provoked criticism. Some 
> critics of Article 2B do not want to give credence to mass-market licenses 
> because they are non-negotiated, standard-form, take-it-or-leave-it 
> licenses.  These critics want to return to a contracting model in which the 
> parties meet, dicker, write terms down, and then sign a record of their 
> transaction.  Other critics seek to regulate the terms that may be used in 
> mass-market licenses.  Still other critics go so far as to say that mass-
> market licenses are not contracts at all. 
> The open source movement could not operate without non-negotiated, 
> standard-form, take-it-or-leave-it mass-market licenses.  The open source 
> license transaction takes place between two anonymous parties over the 
> Internet based on the licensor's standard form.  The licensee typically 
> manifests assent by clicking an "I agree" button or by using, modifying, or 
> distributing the software.  The license terms are non-negotiable, take-it-or-
> leave-it  because the open source licensing model depends upon certain 
> license terms being in the license agreement.  Without those terms, the 
> software being licensed cannot be considered open source software. 
> Moreover, the open source licensing model demands that the licensee sub-
> license those exact terms to other licensees of the software. 

> Mass-market licensing is fundamental to conventional and 
> unconventional  software developers alike. In the software industry, the 
> unconventional often gives the conventional a run for its money. The open 
> source software revolution uses licensing to perpetuate what it considers a 
> superior software development model and to provide low cost software to 
> the mass market. Whether open source software will become a "next great 
> thing" that endures, only time will tell.  Licensing will be at the center of 
> its success or failure. Article 2B should provide a contract law regime that 
> allows revolutionaries like the open source hackers to succeed.

The author is Senior corporate attorney to Microsoft Corporation, and
Chairman of the UCC 2B Working Group of the Business Software Alliance.

Who's he rooting for, and why?

Karsten M. Self (
    What part of "Gestalt" don't you understand?

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