Re:Post-Open Source
by bitwize on Thursday September 10, 2020 @01:26AM
(#24429148)
This has not been tested in court so far as I know.
(Please do not cite Artifex v. Hancom. Special conditions prevailed in that case that do not apply, in general, to all software under a nonexclusive open source license.)
Generally speaking, under common law, in order for an agreement to have the force of a contract, there must be an offer, acceptance, and consideration. Since most people acquire open source through a download, there is no consideration (monetary value) being remitted to the author of the software, and hence the license does not have the force of a contract binding on the author. The license is thus a bare license, and the author has the right to revoke it at any time. Unfortunately that's how contract law works in common-law jurisdictions, and we are in for some nasty surprises once this actually does get tested in court.
Civil-law jurisdictions, for example Germany, do not necessarily require consideration in order for a contract to be binding. Open source licenses such as the GPL can be binding contracts in Germany.
(Please do not cite Artifex v. Hancom. Special conditions prevailed in that case that do not apply, in general, to all software under a nonexclusive open source license.)
Generally speaking, under common law, in order for an agreement to have the force of a contract, there must be an offer, acceptance, and consideration. Since most people acquire open source through a download, there is no consideration (monetary value) being remitted to the author of the software, and hence the license does not have the force of a contract binding on the author. The license is thus a bare license, and the author has the right to revoke it at any time. Unfortunately that's how contract law works in common-law jurisdictions, and we are in for some nasty surprises once this actually does get tested in court.
Civil-law jurisdictions, for example Germany, do not necessarily require consideration in order for a contract to be binding. Open source licenses such as the GPL can be binding contracts in Germany.