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In American law, a contract must have three parts: an offer, acceptance, and consideration. Consideration is something of value given in exchange for the offer

In American law, a contract must have three parts: an offer, acceptance, and consideration. Consideration is something of value given in exchange for the offer in the contract. Because there is nothing paid for a piece of open source software downloaded off the interwebs, there is no consideration. Therefore, open source licenses by themselves constitute what is known as a bare license and may be revoked at any time, for any reason, by the licensor.

1MachineElf 3y ago
Using this logic, how might it play out for Red Hat Enterprise Linux? They are now requiring payment in exchange for access to the source code.
- bitwize 3y ago
  Red Hat may start requiring CLAs for any source they accept as contribution to any software they maintain. To do otherwise would put them at risk of contributors rescinding their licenses and preventing Red Hat from distributing the software they make money on. CLAs may become standard for all serious open source projects for similar reasons. There's a reason why CLAs, including signed permission from your employer, have been standard for GNU Project contributions since forever ago, even if it weren't tied to this particular issue. It gives the FSF free and clear rights to the code to enforce copyleft without the potential for legal snags regarding ownership and permission to distribute later on down the line.
  - michaelmrose 3y ago
    You still need to show that rescinding the license you granted for your open source code is even a thing. It would basically look to collapse a good portion of the software industry into an endless flurry of lawsuit from any number of contributors and their heirs looking to monetize blackmailing projects by threatening to take back contributions. Why wouldn't the US court system nope out of all that by any means available?
    - medstrom 3y ago
      Yeah, I was also led to understand that if you've distributed version 1.00 of your code with a license, there's no rescinding that, you can only stop distributing the license for versions 1.01 onwards. People wouldn't be allowed to use your new versions, but they can stay on version 1.00 forever. Maybe that's just the GPL due to how it's formulated.
Y_Y 3y ago
Common law countries (including the USA) don't limit consideration to cash. It can (and indeed has) been argued that there is consideration for licensor in GPL cases, see e.g. https://www.technollama.co.uk/us-court-declares-gpl-is-a-contract https://www.technollama.co.uk/us-court-declares-gpl-is-a-con... .
- bitwize 3y ago
  Yes, it has been argued, but has it been ruled so in a court of law? The answer is no -- just the opposite. In Jacobsen v. Katzer it was ruled that the Artistic License is not a contract, and the licensor could seek damages for copyright infringement, not just breach of contract. In Artifex v. Hancom it was ruled that because the defendants did not agree to the contract terms for a proprietary license, the terms defaulted to the GPL which they were found in violation of as a license, not a contract. And if a license is not a contract then it is a bare license and can be rescinded at any time for any reason.
  - michaelmrose 3y ago
    I thought the problem with that argument was one part promissory estoppel and one part non-monetary consideration. EG you realized something under the GPL with expectation that said work would serve to for instance help you get a job later by demonstrating your work and users by submitting bug reports, code, endorsements helped you achieve the expected goals by making your work more visible and credible. I'm not aware of any case in which for instance someone has successfully defended their right to rescind a license to the GPL license code they granted in history. A pragmatic court given 2 plausible interpretations with some merit isn't obligated to endorse an interpretation with an obviously negative effect they're people not CPUs interpreting code. A timeline where we need a GPLv4 to cover the case of assholes taking back their shit contrary to decades of expectations and leaving mission critical v2 projects like Linux constantly at risk of a 10,000 time bombs from heirs taking back daddy's code is clearly the dumbest of all possible worlds and we are under no obligation to live there if their is a reasonable out. My money is on this theory remaining a fairy tale until someone actually spends enough money to test it and its dissolved forever by actual case law. Artifex Software, Inc. v. Hancom, Inc. which was ultimately settled out of court seems to have found the exact opposite of what you said if I read this correctly. https://www.synopsys.com/blogs/software-security/breach-gpl-license-breach-contract/ https://www.synopsys.com/blogs/software-security/breach-gpl-... Jacobsen v. Katzer is a complicated affair but regardless of your interpretations it certainly doesn't concern the revocation of a bare license. Most of the action seems to concern whether the party could get damages.

1MachineElf 3y ago

Using this logic, how might it play out for Red Hat Enterprise Linux? They are now requiring payment in exchange for access to the source code.

bitwize 3y ago
Red Hat may start requiring CLAs for any source they accept as contribution to any software they maintain. To do otherwise would put them at risk of contributors rescinding their licenses and preventing Red Hat from distributing the software they make money on. CLAs may become standard for all serious open source projects for similar reasons. There's a reason why CLAs, including signed permission from your employer, have been standard for GNU Project contributions since forever ago, even if it weren't tied to this particular issue. It gives the FSF free and clear rights to the code to enforce copyleft without the potential for legal snags regarding ownership and permission to distribute later on down the line.
- michaelmrose 3y ago
  You still need to show that rescinding the license you granted for your open source code is even a thing. It would basically look to collapse a good portion of the software industry into an endless flurry of lawsuit from any number of contributors and their heirs looking to monetize blackmailing projects by threatening to take back contributions. Why wouldn't the US court system nope out of all that by any means available?
  - medstrom 3y ago
    Yeah, I was also led to understand that if you've distributed version 1.00 of your code with a license, there's no rescinding that, you can only stop distributing the license for versions 1.01 onwards. People wouldn't be allowed to use your new versions, but they can stay on version 1.00 forever. Maybe that's just the GPL due to how it's formulated.

Y_Y 3y ago

Common law countries (including the USA) don't limit consideration to cash. It can (and indeed has) been argued that there is consideration for licensor in GPL cases, see e.g. https://www.technollama.co.uk/us-court-declares-gpl-is-a-contract https://www.technollama.co.uk/us-court-declares-gpl-is-a-con... .

bitwize 3y ago
Yes, it has been argued, but has it been ruled so in a court of law? The answer is no -- just the opposite. In Jacobsen v. Katzer it was ruled that the Artistic License is not a contract, and the licensor could seek damages for copyright infringement, not just breach of contract. In Artifex v. Hancom it was ruled that because the defendants did not agree to the contract terms for a proprietary license, the terms defaulted to the GPL which they were found in violation of as a license, not a contract. And if a license is not a contract then it is a bare license and can be rescinded at any time for any reason.
- michaelmrose 3y ago
  I thought the problem with that argument was one part promissory estoppel and one part non-monetary consideration. EG you realized something under the GPL with expectation that said work would serve to for instance help you get a job later by demonstrating your work and users by submitting bug reports, code, endorsements helped you achieve the expected goals by making your work more visible and credible. I'm not aware of any case in which for instance someone has successfully defended their right to rescind a license to the GPL license code they granted in history. A pragmatic court given 2 plausible interpretations with some merit isn't obligated to endorse an interpretation with an obviously negative effect they're people not CPUs interpreting code. A timeline where we need a GPLv4 to cover the case of assholes taking back their shit contrary to decades of expectations and leaving mission critical v2 projects like Linux constantly at risk of a 10,000 time bombs from heirs taking back daddy's code is clearly the dumbest of all possible worlds and we are under no obligation to live there if their is a reasonable out. My money is on this theory remaining a fairy tale until someone actually spends enough money to test it and its dissolved forever by actual case law. Artifex Software, Inc. v. Hancom, Inc. which was ultimately settled out of court seems to have found the exact opposite of what you said if I read this correctly. https://www.synopsys.com/blogs/software-security/breach-gpl-license-breach-contract/ https://www.synopsys.com/blogs/software-security/breach-gpl-... Jacobsen v. Katzer is a complicated affair but regardless of your interpretations it certainly doesn't concern the revocation of a bare license. Most of the action seems to concern whether the party could get damages.