Don't put your software in the public domain

Steven D'Aprano steve at
Fri Jun 3 22:12:40 EDT 2016

On Sat, 4 Jun 2016 02:15 am, Lawrence D’Oliveiro wrote:

> On Friday, June 3, 2016 at 9:53:47 PM UTC+12, Steven D'Aprano wrote:
>> A licence is something like a contract...
> A licence is quite different from a contract. A contract requires some
> indication of explicit agreement by both parties, a licence does not.

That's a very good point. In the USA:

    A license is a unilateral abrogation of rights. The licensor has,
    by law, the ability to enforce certain rights against the licensee,
    and the license functions as a promise not to enforce those rights.
    [...] if the conditions are violated, which essentially makes it a
    contract. As further discussed below, a contract requires mutual
    agreement and bilateral consideration. It is likely that a court,
    in the U.S. or abroad, would recognize the GPL as a contract.

And further:

    There must be an offer, acceptance of that offer, and something of
    value exchanged.

"Taking the case: Is the GPL enforceable?", Jason B Wacha, Santa Clara High
Technology Law Journal, Vol. 21 Issue 2.

In the case of the GPL, the offer is the right to copy, distribute and
modify the software, acceptance is the act of copying, distributing or
modifying the software. The exchange does not have to be monetary. In
exchange for the right to copy, distribute and modify the software, the
licensee agrees to keep copyright notices intact, insert certain required
notices, and redistribute the code only under the conditions of the
license. This is sufficient consideration, at least under US contract law.

In Europe and particularly Germany, things are different, as the German
courts don't recognise licences as a thing[1]. The GPL would have to be
treated as a contract, or not be legally meaningful. But that doesn't hurt
the GPL: if it is found to be invalid, then the infringing licensee finds
themselves with only their limited rights under copyright law, which most
certainly does not include the right to make unlimited copies and
distribute them.

As Wacha writes in the same paper:

    But what if, for some reason, a court held the GPL to be an 
    unenforceable license? [...] the licensee (who received the 
    code) reverts back to her common law rights. That means that 
    she has the rights to use the program (i.e., to copy into
    memory as necessary to run it) and to make a backup copy. 
    What disappears are the restrictions and other limitations 
    in the GPL. But these will be the only rights a licensee 
    has-she would have no right to distribute, and no right to 
    modify. So for a user, challenging the validity of the GPL 
    is a dangerous game.

> That’s why Free Software licences only have to say something like “by
> using this software, you agree to the following terms...”, because if the
> user doesn’t accept the licence, then they have no licence.


> EULAs for proprietary software, on the other hand, try to have it both
> ways, by having a clause like the above, as well as requiring you to click
> an “I Agree” button or some such.

I have no comment on whether or not that makes EULA a contract, or whether
it is relevant to the discussion. Wacha has some things to say
about "clickwrap licences", see the URL above.


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