>>> No no no. Licenses are NOT contracts.

Yes yes yes, licenses are contracts.

That just got set in stone by the French appeal court and backed by a decision from the CJEU few months before (the European court of Justice).

Case 19 March 2021 https://www.legalis.net/jurisprudences/cour-dappel-de-paris-...

Enjoy. I'm sure I'm not alone in completely ignoring the opinion of French judges and the European Court of Justice.

Just for context, the author of the article you're commenting on is Julia Reda, a EU copyright activist and a former member of the EU parliament. While I likewise don't have too much use for the legal opinion of French courts, I think we can afford to cut her some slack for focusing on legal interpretations in her native jurisdiction.

Fair enough. She is correct about licenses in her jurisdiction.

If you don't care about what the courts say, I am not sure why you are making legal claims here.

When it comes to legal matters, the only thing that matters is the opinion of the court system.

You are correct that they are not necessarily contracts, but they can be. (See https://writing.kemitchell.com/2020/12/27/War-on-License-Not... and search for "Blue Oak avoids this theoretical complexity.")

That's the US perspective on the matter, not globally applicable.

They're sort of contracts. If you do this, you get a copyright exemption; otherwise, you don't have the legal right to do anything.

They have nothing to do with contracts and there's a simple test for it. When contracts are violated, then if there's litigation the parties consult the relevant contract law for how to proceed. When a license is violated, the parties consult whatever law the license was permitting an exception to. If you copy software without a license, you can be sued for copyright infringement. If you fish without a license, you can be sued for trespassing.

and what pre-tell makes it a NON contract?

License all by themselves are forms of contracts

In fact the bill of rights is one

Not trying to be snarky or rude, just letting you know the phrase is "pray tell", for your future reference.

You need to actively assent to a contract. Some software has contracts ("EULAs") but you are bound by the license whether you agree or not.

https://en.wikipedia.org/wiki/Meeting_of_the_minds?wprov=sfl...

A license isn't a contract that binds the licensee, it's a contract that only binds the rightsholder. Since you, the licensee, are not relinquishing any rights in the contract, there's no need for you to agree to anything. The only rights being relinquished are the rightsholder's right to pursue legal retribution for some uses of their work that would otherwise be violations of copyright.

You dont have to call it a contract, but it is a legal document in which one or more parties legally bind themselves, which seems like an adequate definition of a contract to me, and has more etymological fidelity to the word "contract" than other possible definitions that would exclude licenses. A contract is a legal instrument by which the breadth of your rights contract — as in become smaller.

OSS licenses, so far as they a permissive and require nothing in return, are not contracts. This is often the case for simply using the OSS software. The user has no obligations whatsoever.

If, on the other hand, the licensor and licensee both have some obligations (in OSS, this is usually when you modify or redistribute the source or compiled product), then it's basically a contract, no matter what RMS claims.

I mean, with all due respect to the guy, he makes controversial claims even in the field of software engineering (and also free software evangelism), his supposed professional field. Why would you trust what he says about contract law, a field where he has no professional training whatsoever?

(That said, GPLv2 is still an ingenious work for many reasons, albeit lawyers probably won't draft it that way)

"This is often the case for simply using the OSS software. The user has no obligations whatsoever."

This is a category error when it comes to copyleft licenses like the GPL. It has nothing to say about usage.

"If, on the other hand, the licensor and licensee both have some obligations (in OSS, this is usually when you modify or redistribute the source or compiled product), then it's basically a contract, no matter what RMS claims."

No it's not. There are no pre-agreed terms, penalties for violation, expected compensation for services provided or anything like that. GPLed software is copyrighted. Copyright law says you have no rights to copy it or make derivative works of it whatsoever. The license permits you to do so.

"Why would you trust what he says about contract law, a field where he has no professional training whatsoever?"

Because, surprise surprise, he has advice from people who ARE trained in the law.

> The GPL ... has nothing to say about usage.

The GPLv2 text: " The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). "

Of course this sentence contradicts the previous sentence in the text, which claims that normal usage "is not covered by this License". I presume you'd argue to support your claim, but seriously, this is bad drafting.

> No it's not. There are no pre-agreed terms, penalties for violation, expected compensation for services provided or anything like that.

"penalties for violation", "expected compensation" are not necessary requirements for formation of a contract. The pre-agreed terms are clearly stated in the license text, or at least as clear as far as they don't contradict each other. By the way, "pre-agreed terms" are not necessary for the formation of a contract either.

> Because, surprise surprise, he has advice from people who ARE trained in the law.

Are you trained in the law? Because if you think the Internet should pay regards to somebody trained in the law (even though they may not have learned the law properly) as opposed to somebody who hasn't, then I don't see why you think you have a standing to speak as though you're an authoritative source on the matter.

PS: There's still a nuance that might require clarification(or am I adding confusion?) in your original quote though:

Quote: "(of course, free software licenses would still fulfil the important function of contractually requiring the publication of modified source code)"

Even though as many others have pointed out, OSS licenses can be contracts, I'm actually not sure this sentence is correct.

When somebody uses the source code in compliance with the license terms, a contract might be formed to allow both parties to enjoy rights. However, if one party never complied with those terms and breaches them (eg. distributing source without retaining copyright notices), then arguably no contract was ever formed, and the act is a simple matter of copyright violation and not a "breach of contract".

Hope I'm not splitting hairs.

Disclaimer: learned English common law a bit, not a lawyer.

That article isn't written by RMS, and the author has some relevant credentials.

> Eben Moglen is professor of law and legal history at Columbia University Law School.

You're right. I was mistaken -- I thought he was referring to those RMS claims that in general the GPL is not a contract.

In Moglen's article about enforcement, I think he's right that where there's a breach of GPL there is no contract. In fact that's what I said also in my follow up reply.

This is false on many levels.

Pray tell? (preferably citing legal authority?)