Why the JMRI decision matters

Posted Aug 14, 2008 23:17 UTC (Thu) by bojan (subscriber, #14302) [Link]

I think your argument is pushing it a bit. The court was quite clear:

> "Copyright holders who engage in open source licensing have the right to control the
modification and distribution of copyrighted material."

and

> "Copyright licenses are designed to support the right to exclude; money damages alone do not
support or enforce that right."

Note the key word "copyright" in both sentences.

Posted Aug 14, 2008 23:42 UTC (Thu) by rickmoen (subscriber, #6943) [Link]

As bojan says, the important part of the decision is where the Federal Circuit (Court of Appeals) ruled that Jacobsen's licence (AL 1.0) qualified as a grant under copyright law, irrespective of its merits when considered under contract law. That's important because then plaintiff can ask for "court of equity" remedies (injunctions, court orders), whereas contract claims support only "court of law" remedies (economic damages). Please see further explanation of these two distinct bodies of law, if interested.

So, required elements of contract were actually not at issue in this case. However, had they been, you would have, in my view, been overinterpreting those of privity and consideration. (This happens over and over, in discussions among computerists.)

The requirement of privity of contract is really just a bar to holding to a contract, or granting contract enforcement rights to, people who never participated in the offer or acceptance -- third parties who didn't pose the offer or the acceptance. There is no requirement in contract law that the actual offerer or the actual acceptor ever meet, exchange e-mail, etc. Contract formation can occur entirely through conduct that establish the offer and acceptance separately.

Consideration, as you say, gets found rather easily. It is essentially anything that can be reasonably found to have non-zero value, including foregoing of a right or assuming of an obligation that one doesn't otherwise have.

Rick Moen
rick@linuxmafia.com
(IANAL, but survived many business law classes, back in the day)

Posted Aug 23, 2008 17:19 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

While I always have to bite my tongue in these discussions because I'm not a copyright lawyer, I am a contract lawyer, so I can effectively argue the other side here. I believe all the open source copyright licenses could be made indisputably contracts with only slightly different wording. (For example, substitute "A and B agree ..." for "A grants to B ..."

I don't see lack of privity. The parties to the dispute are actual parties to the contract; you can't get any more privity than that.

And I see plenty of consideration, of the regular kind -- no need to resort to detrimental reliance. Consideration by the author is permission to copy. Consideration by the distributor is giving people the source code and all that. Giving people source code must be of value to the author or he wouldn't have tried so hard to get the distributor to do it.

Here's a settled contract scenario that is similar to what goes on with free software:

I publish in the newspaper an offer to pay $100 to anyone who works a four hour shift at any local charity. So you work a shift. You and I are parties to a contract, your consideration is the work you did, mine is the $100, and I owe you $100.

Someone who takes up a restrictive licence and is bound by it ...