7 ms·

>Also, technically if you don't pay for code the copyright holder can revoke the license at any time I'm pretty sure this is a myth.

dec0dedab0de 8y ago
IANAL but I think it is a grey area. Licenses are contracts, and contracts usually require "consideration", but there is also something called "Promissory Estoppel" which may nullify that. I found out about it from someone on here a while back and went down a rabbit hole googling it.
- blihp 8y ago
  The consideration with open source licenses is often authorship credit / promotional. It's not terribly different than a band giving away MP3's of their music: maybe they want to share their music with the world, maybe they want you to buy a ticket to their concert, but they are getting something out of it and are free to give away something if they have the rights to do so.
- joshuamorton 8y ago
  (Not a lawyer) The license does have consideration. You provide some code. The other entity (the project) provides attribution and other things depending on the specific license. Promissory Estoppel only comes in to play if one side doesn't provide anything of value, and so the bar of consideration isn't met. But to my knowledge, licenses already meet the bar of consideration, so promissory estoppel doesn't matter. Money isn't the only thing of value. The exchange of one good or service for another good or service is still consideration, no matter what. And "attribution" and "the promise to hold harmless" are of value.
- chc 8y ago
  In addition to that, "consideration" doesn't have to mean "money" — in fact, consideration usually won't be monetary on at least one side of the contract (e.g. if I offer you $5 to mow my lawn, the lawnmowing is consideration). If your license requires people to give you attribution, that could reasonably be viewed as consideration. (IANAL and obviously this comes with the usual truck full of caveats that all legal issues do, but this is my understanding of the general state of US law at least.)
tzs 8y ago
That if you don't pay the license can be revoked at any time is probably indeed a myth. On the other hand, there is a chance big enough to worry about that many FOSS license could in fact be revoked by the copyright owners for other reasons, or if not revoked have distribution greatly hindered. There are two issues (at least). The first is that some such licenses may be "bare licenses". A bare license is a license to use someone else's property that is not coupled with an equitable interest in that property. Bare licenses can be revoked at will unless they state they are irrevocable. Of course, you could have a bare license, and separate from that a contract with the copyright owner in which the copyright owner agrees not to revoke the bare license, so a license being a bare license is not necessarily a big deal except when it stands alone. I think that such an associated contract is reasonably likely to be found in most cases. The second, and more serious issue is where does your license come from when you use FOSS software? This, as far as I know, is largely unexplored in the courts. Let's say I've released Foo under a FOSS license. The license says it is irrevocable. You get a copy of Foo from me. You've got a license to Foo, from me, and it is yours forever. Now you give a copy of Foo to Bob. Where does Bob's license come from? There are two possibilities. (1) It comes from me. Whenever you, or anyone else, no matter how many steps removed from me distributes Foo the recipient automatically receives a license from me. (2) The Foo license allows sublicensing, and you use your sublicensing right to create a license for Bob. The big question is what happens if it some point I announce that I am no longer issuing new licenses. The sublicensing case is the most clear. Everyone who already has Foo retains they license (remember, I made the Foo license irrevocable). Their licenses allow sublicensing, so they can continue to distribute, giving their distributees a license (which includes the sublicensing right). Unfortunately only a couple major FOSS licenses, I believe, allow sublicensing (Apache and MIT). Most of the rest either are silent on it or explicitly say it is not allowed (GPL). So lets assume non-sublicensable Foo...Bob gets a copy of Foo from you after I have purportedly stopped issuing licenses. I sue Bob for copyright infringement. What is Bob's defense? Note that I am not attempting to revoke the irrevocable Foo license with anyone--I'm just trying to stop create new* Foo licenses with anyone else. Bob can't really argue that you gave him a Foo license, because the Foo license does not allow sublicensing. I think Bob is going to have to argue that there is a contract between me and you, and part of that contract is that I will issue new Foo licenses to anyone you give the software to, and by not issuing Bob a license I'm in breach of my contract with you, and that Bob is a third party beneficiary of my contract with you, and has standing to counter sue to enforce my contract with you to issue him a license. But third party beneficiaries only have standing when they are an intended beneficiary, not when they are incidental beneficiaries. It would be a big, very unclear, mess.

dec0dedab0de 8y ago

IANAL but I think it is a grey area. Licenses are contracts, and contracts usually require "consideration", but there is also something called "Promissory Estoppel" which may nullify that. I found out about it from someone on here a while back and went down a rabbit hole googling it.

blihp 8y ago
The consideration with open source licenses is often authorship credit / promotional. It's not terribly different than a band giving away MP3's of their music: maybe they want to share their music with the world, maybe they want you to buy a ticket to their concert, but they are getting something out of it and are free to give away something if they have the rights to do so.
joshuamorton 8y ago
(Not a lawyer) The license does have consideration. You provide some code. The other entity (the project) provides attribution and other things depending on the specific license. Promissory Estoppel only comes in to play if one side doesn't provide anything of value, and so the bar of consideration isn't met. But to my knowledge, licenses already meet the bar of consideration, so promissory estoppel doesn't matter. Money isn't the only thing of value. The exchange of one good or service for another good or service is still consideration, no matter what. And "attribution" and "the promise to hold harmless" are of value.
chc 8y ago
In addition to that, "consideration" doesn't have to mean "money" — in fact, consideration usually won't be monetary on at least one side of the contract (e.g. if I offer you $5 to mow my lawn, the lawnmowing is consideration). If your license requires people to give you attribution, that could reasonably be viewed as consideration. (IANAL and obviously this comes with the usual truck full of caveats that all legal issues do, but this is my understanding of the general state of US law at least.)

tzs 8y ago

That if you don't pay the license can be revoked at any time is probably indeed a myth. On the other hand, there is a chance big enough to worry about that many FOSS license could in fact be revoked by the copyright owners for other reasons, or if not revoked have distribution greatly hindered. There are two issues (at least). The first is that some such licenses may be "bare licenses". A bare license is a license to use someone else's property that is not coupled with an equitable interest in that property. Bare licenses can be revoked at will unless they state they are irrevocable. Of course, you could have a bare license, and separate from that a contract with the copyright owner in which the copyright owner agrees not to revoke the bare license, so a license being a bare license is not necessarily a big deal except when it stands alone. I think that such an associated contract is reasonably likely to be found in most cases. The second, and more serious issue is where does your license come from when you use FOSS software? This, as far as I know, is largely unexplored in the courts. Let's say I've released Foo under a FOSS license. The license says it is irrevocable. You get a copy of Foo from me. You've got a license to Foo, from me, and it is yours forever. Now you give a copy of Foo to Bob. Where does Bob's license come from? There are two possibilities. (1) It comes from me. Whenever you, or anyone else, no matter how many steps removed from me distributes Foo the recipient automatically receives a license from me. (2) The Foo license allows sublicensing, and you use your sublicensing right to create a license for Bob. The big question is what happens if it some point I announce that I am no longer issuing new licenses. The sublicensing case is the most clear. Everyone who already has Foo retains they license (remember, I made the Foo license irrevocable). Their licenses allow sublicensing, so they can continue to distribute, giving their distributees a license (which includes the sublicensing right). Unfortunately only a couple major FOSS licenses, I believe, allow sublicensing (Apache and MIT). Most of the rest either are silent on it or explicitly say it is not allowed (GPL). So lets assume non-sublicensable Foo...Bob gets a copy of Foo from you after I have purportedly stopped issuing licenses. I sue Bob for copyright infringement. What is Bob's defense? Note that I am not attempting to revoke the irrevocable Foo license with anyone--I'm just trying to stop create new* Foo licenses with anyone else. Bob can't really argue that you gave him a Foo license, because the Foo license does not allow sublicensing. I think Bob is going to have to argue that there is a contract between me and you, and part of that contract is that I will issue new Foo licenses to anyone you give the software to, and by not issuing Bob a license I'm in breach of my contract with you, and that Bob is a third party beneficiary of my contract with you, and has standing to counter sue to enforce my contract with you to issue him a license. But third party beneficiaries only have standing when they are an intended beneficiary, not when they are incidental beneficiaries. It would be a big, very unclear, mess.