[cc-licenses] New Generic and ports

Andres Guadamuz a.guadamuz at ed.ac.uk
Sun Oct 8 08:59:28 EDT 2006

drew Roberts wrote:
>> Sigh! Again, I do not speak for CC, so CC does not "believe" anything,
>> these are my personal opinions. As for my personal opinion, I do indeed
>> think that the GPL v2 rests on shaky ground in many jurisdictions,
>> something that is being solved by re-drafting efforts in version 3. I
>> also believe that despite protestations to the contrary, the GPL is a
>> contract in most jurisdictions.
> So, if I were a jerk and wrote up my own version of the GPL that basically 
> said that my license was a license for any jurisdiction that would accept it 
> as a license and not a contract but that I was unwilling to enter into a 
> contract with anyone on these or any terms without actual personal 
> negotiations, and in that case this work was "all rights reserved" what would 
> the courts in "contract" countries do? Force me into the contract which I 
> specifically state I am unwilling to enter? (I am trying to understand this 
> all.)

No need to be a jerk, you just need to be Microsoft :) Seriously though, 
in your case I believe that it would be clear that there is no contract 
because you have specified that potential users of the software in 
certain jurisdictions have to negotiate with you directly. The court 
would have to recognise that you do not want to enter into a contract. 
However, without that proviso, normal contract-formation rules would 
apply. If I licence my software with the GPL, and this is used in a 
country without consideration, then I would be faced with a contract if 
my licence fulfils contract-formation requirements. If it looks like a 
contract, behaves like a contract and has the effects of a contract, 
then it is a contract.

To go even further, I've been involved in a discussion in the Cyberprof 
list on the question of whether the GPL's copyleft clause constitutes 
consideration, and therefore it's a contract in common law systems. Fred 
von Lohman from EFF wanted to know if the GPL was a contract. Opinions 
were completely split on this, with some stating that the copyleft 
clause created enough consideration to make the GPL a contract. Others 
were not convinced. My personal opinion is that the copyleft clause 
generates an obligation on those who redistribute modified versions of 
the software. In my book, this obligation would be enough to constitute 
consideration, and therefore the licence is also a contract. My 
suggestion is that the GPL could act as both a contract and a licence 
(sort of like the dual nature of photons), and that you could choose 
whether to sue for breach of contract or for copyright infringement. I 
will be the first to admit that this is a contentious view, so please 
take it with a pinch of salt (I'm a Civil lawyer at hear after all).

> So again, wht if in my personal version of the GPL I said that the consumer 
> would have to pay me X for the use of my work in countries where law forces 
> me to give a warranty? I find it odd that I would have to provide a warranty 
> to someone I am not in a "business" relationship with and am earning no 
> benefit from. A warranty on something I have never sold to anyone in fact, 
> much less someone on the other side of the planet.
> Now, has this ever actually caused big problems to small players in practice? 
> Does anyone know?
I should have included the caveat that unfair terms rules apply only to 
consumer contracts where both parties are at an imbalance. I think that 
this would be more of a concern for "large" licensors, but SME's are 
worried about it. I attended a seminar organised by a large UK law firm 
where the advice given to small and medium firms using the GPL was that 
they should be aware that the warranty exclusion clause could be unfair 
in some circumstances, so that they should act accordingly. I don't know 
if those firms followed the advice and took insurance as a result, but I 
know that it is a big concern. See:



Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL 

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz at ed.ac.uk

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