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Civil Law systems (e.g. much of continental Europe) make no distinction between licences and contracts, so the licences would still be enforceable under contrac

Civil Law systems (e.g. much of continental Europe) make no distinction between licences and contracts, so the licences would still be enforceable under contract law in the absence of copyright law. This of course leaves the glaring exceptions of Common Law systems, such as the US, UK, India and Australia. IANAL, so I have no idea if it would be feasible to rewrite e.g. the GPL to work under Common Law contract law.

arethuza 13y ago
IANAL either (although married to one!) - what about the matter of consideration as a requirement for a contract in some jurisdictions (although apparently not my native Scotland). i.e. Might there not be a requirement to pay a nominal fee to enter into a contract-based "license" in some places? Which would seem odd.... :-)
- quarterto 13y ago
  It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. [1] Sounds like the things GPL (etc) prohibit/promise themselves might count. [1]: http://en.wikipedia.org/wiki/Consideration http://en.wikipedia.org/wiki/Consideration
icebraining 13y ago
Yes, but the only reason you need a license is because copyright law prevents you from copying the work without one. Without copyright, you don't need to subscribe to any license or contract to copy and redistribute the work.
jarrett 13y ago
Under US law, consideration has long been a specter haunting the enforceability of open source licenses--specifically enforcement by the user against the copyright holder. Here's the problem: If the copyright holder gains nothing in the transaction that the license governs, then the license is not an enforceable contract. Thus, the user cannot enforce the terms of the license against the copyright holder. The copyright holder could, for example, revoke the license at any time and demand everyone stop using the open source software. I've always wondered: Could an open source license create consideration by referring to the copyright holder's business or career interest in the software enjoying widespread use and acclaim? As a software developer, I could stand to gain financially from the success of my open source project. For example, I could leverage my notoriety into a well-compensated position. Or I could hire myself out as a consultant to users of the open source software. Or I could start a business, and piggyback off the prominence of the open source software to promote my business. There are also theories whereby promissory estoppel would protect users against copyright holders. I won't comment on these theories except to say that they're pretty much untested. This area of law is mostly unsettled. There's far too little case law for anyone to make a definitive pronouncement yet.

arethuza 13y ago

IANAL either (although married to one!) - what about the matter of consideration as a requirement for a contract in some jurisdictions (although apparently not my native Scotland). i.e. Might there not be a requirement to pay a nominal fee to enter into a contract-based "license" in some places? Which would seem odd.... :-)

quarterto 13y ago
It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. [1] Sounds like the things GPL (etc) prohibit/promise themselves might count. [1]: http://en.wikipedia.org/wiki/Consideration http://en.wikipedia.org/wiki/Consideration

icebraining 13y ago

Yes, but the only reason you need a license is because copyright law prevents you from copying the work without one. Without copyright, you don't need to subscribe to any license or contract to copy and redistribute the work.

jarrett 13y ago

Under US law, consideration has long been a specter haunting the enforceability of open source licenses--specifically enforcement by the user against the copyright holder. Here's the problem: If the copyright holder gains nothing in the transaction that the license governs, then the license is not an enforceable contract. Thus, the user cannot enforce the terms of the license against the copyright holder. The copyright holder could, for example, revoke the license at any time and demand everyone stop using the open source software. I've always wondered: Could an open source license create consideration by referring to the copyright holder's business or career interest in the software enjoying widespread use and acclaim? As a software developer, I could stand to gain financially from the success of my open source project. For example, I could leverage my notoriety into a well-compensated position. Or I could hire myself out as a consultant to users of the open source software. Or I could start a business, and piggyback off the prominence of the open source software to promote my business. There are also theories whereby promissory estoppel would protect users against copyright holders. I won't comment on these theories except to say that they're pretty much untested. This area of law is mostly unsettled. There's far too little case law for anyone to make a definitive pronouncement yet.