Subject: Unilateral licenses -- issues in FS licensing
From: kmself@ix.netcom.com
Date: Tue, 6 Jun 2000 14:25:15 -0700
Tue, 6 Jun 2000 14:25:15 -0700
Following is crossposted from the CNI-Copyright mailing list.  I suspect
there may be more FS-specific knowledge on this side, though I'll be
interested to see what the legal wonks have to say there as well.
------------------------------------------------------------------------

I've received a query offline from a lawyer regarding free software
licenses.  I'm not a lawyer, but am somewhat familiar with the topic.
I'll also be speaking on the topic of free software licensing at the
upcoming O'Reilly Open Source Software Convention.

The question of unilateral licenses comes up (I'm rather less familiar
with contract issues in general -- most of my knowledge is of copyright
law, with a smattering of patent and trademark thrown in).
Specifically:

    I get skepticism on the issue of whether one can have a unilateral
    license at all, let alone one as complex as an OSSL (open source
    software license).  However, I've not yet heard any analysis that
    convinces me that a unilateral license isn't  possible.

Which raises a number of questions for me.  I'm looking for general
arguments one way or the other, and references, if possible.  I'm not
looking for specific legal advice.

  o First, what, precisely, is meant by the term "unilateral license"?  It
    doesn't appear to occur frequently, searches at Google and Deja turn up
    a relatively small number of references, only a few of which are
    applicable.

    What arguments would suggest that common free software licenses, say the
    GNU GPL, the BSD and MIT licenses, and the Mozilla Public License, are
    (or are not) unilateral licenses.

  o What other examples of unilateral licenses are there?  If the term means
    a "take it or leave it" license, I can think of several:  most existing
    "shrinkwrap" or "clickwrap" software licenses, liability limitations
    found on typical parking and laundry tickets, airplane or shipping
    limitations of liability, terms of access to publicly accessible lands,
    etc.  IIRC, there is a landmark court case cited WRT shrinkwrap, the
    case itself concerns shipping licenses.  I don't recall the details.

  o A common argument supporting the viability of the GNU GPL specifically,
    is that the GPL concerns itself only with rights reserved to copyright 
    holders under copyright law.  In circumstances in which the license
    isn't accepted, the case is taken to move from contract violation to
    copyright infringement, as exemptions to exclusive copyrights are only
    granted by the license.  How is this situation confounded by
    unilateral licensing issues?

  o Finally, the point raised is that UCITA might strengthen the status
    of unilateral licenses, including (if they are indeed unilateral),
    common free software licenses.  This is a thesis of Robert Gomulkeiwicz,
    a lawyer for Microsoft, and closely associated with the pro-UCITA lobby:
    "How Copyleft Uses License Rights To Succeed in the Open Source Revolution
    and the Implications for Article 2B", 36 Houston L. Rev. 179 (1999),
    http://www.2bGuide.com/docs/HCUL.doc.

    (The general concensus in the free software community is that UCITA is
    unspeakably bad legislation, and that even should it provide some
    advantages in the area of free software licensing, the harm it would
    affect far outweighs this.  UCITA itself isn't intended to be a major
    theme of this post, though I suspect my correspondant is seeking support
    from the free software community.)

Thank you.

Several of the more promising references turned up in a web search:

 o AALL Washington Affairs: Letter to Professor Raymond Nimmer, March
   27, 1997 http://www.ll.georgetown.edu/aallwash/lt032797.html

 o "Copyright Policy and the Limits of Freedom of Contract", Niva 
   Elkin-Koren 
   http://eon.law.harvard.edu/h2o/property/alternatives/reading2.html

 o "Re: The position RMS takes..." W. Yip (email archive)
   http://www.mail-archive.com/license-discuss%40opensource.org/msg01590.html

Also suggested:  "Copyleft: Licensing Collaborative Works in the Digital
Age", Ira V.  Heffan, 49 Stanford Law Review 1487 (1997).

...while I don't have access to the last article, I would appreciate a
copy if available (personal research).

-- 
Karsten M. Self <kmself@ix.netcom.com>         http://www.netcom.com/~kmself
  Evangelist, Opensales, Inc.                       http://www.opensales.org
   What part of "Gestalt" don't you understand?      Debian GNU/Linux rocks!
     http://gestalt-system.sourceforge.net/      K5: http://www.kuro5hin.org
GPG fingerprint: F932 8B25 5FDD 2528 D595  DC61 3847 889F 55F2 B9B0


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