Note that "license" is a US concept that does not exist in Europe. Licenses here are systematically interpreted as full fledged contracts and fall under contract law.
Have to point out how this seemingly minor point in parenthesis really highlights how the comment is wrong and misplaced for a good chunk of the world.
P.S. Not trying to criticize here, just pointing out that copyright is vast and complex.
Well, it exists in the UK and, I'm fairly certain, Ireland.
> Licenses here are systematically interpreted as full fledged contracts and fall under contract law.
Do contracts in your jurisdictions not require mutual consideration or are licenses without mutual consideration facially defective? And is this gratuitous licenses in general don't exist or just in copyright?
Long story short. US contracts (common law) require consideration (both parties give something to the other). License couldn't be contracts because they give rights without getting anything in return. That's why it's a separate concept.
European contracts (civil law) don't require consideration. Thus there's no need for a separate concept of license. (Allow me to skip the Europe vs UK debate for brevity ^^)
In practice, we don't think much about failures of consideration in the US, at least outside of law school. Even without any stated exchange in the terms of a license, courts have obligingly found one for the licensor-plaintiff in surrounding circumstances. See Jacobsen v Katzer way back when, Artifex v Hancom more recently.
We do have rules for unilateral contracts and induced reliance, but they don't seem to come up much.
Jacobsen v. Later found a lot of interesting things, but the existence of a contract based on what otherwise would appear to be a gratuitous open source license doesn't appear to be one of them (at least in the Federal Circuit decision where that doesn't appear to have been an issue in dispute; there is a passing reference to consideration when discussing another issue, and it's clear that the District Court ruled -- and the Federal Circuit reversed on this point -- that the case should be resolved under contract rather than copyright terms, but it's not clear from the Federal Circuit that the District Court ruled this way basses on the existence of a contract or based on the general legal principle that, but for the areas of legal distinction between bare licenses and contracts, licenses are applied based on contract law. And the Federal Circuit reversal wasn't based on anything which would distinguish those, but on finding that the conditions in the Artistic License were valid as conditions rather the covenants, leaving bare copyright claims available in the event the terms were violated.
Artifex v Hancom also doesn't seem to offer much, since that there was a contract doesn't appear to be a point in dispute.
From the Federal Circuit Jacobsen opinion, summarizing the action below, which to that point was motion practice on preliminary injunction:
> ... The District Court found that Jacobsen had a cause of action only for breach of contract, rather than an action for copyright infringement based on breach of the conditions of the Artistic License. Because a breach of contract creates no presumption of irreparable harm, the District Court denied the motion for a preliminary injunction.
>
> Jacobsen appeals the finding that he does not have a cause of action for copyright infringement. ...
The appellate court vacated and remanded.
In its analysis:
> Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public lenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir.2001) (...).
Summing up the issue at bar:
> The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license.
In construing the terms of the license, the Federal Circuit explicitly references state contract law:
> Under California contract law, "provided that" typically denotes a condition.
Artifex v. Hancom is important in part because there wasn't any real dispute on contract enforcement. But the license at issue was GPLv2, whose author, the FSF, had long insisted it was just a license. From the terms:
> You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
In the order on motion for partial summary judgment, the court notes:
> The license was not free in the sense that there was no consideration owed under the agreement.
It then cites Jacobsen on "lack of money changing hands".
Later:
> Plaintiff gave away its Ghostscript program in consideration for the user making its software open source, which Defendant does not dispute it did not do. The record supports a finding that Defendant received a benefit (the use of Ghostscript) at Plaintiff's expense by depriving Plaintiff of the value of having Defendant's software open source.
Oops. Artifex was a GPLv3 case, not a GPLv2 case. GPLv3 section 9 is a little different:
> You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.
Speaking generally, the vast majority of writing I've seen about "bare licenses" that aren't also contracts comes from theory, and particularly early, FSF-affiliated theory. Not practice. Not courts.
There was activist fear about the dark power of contract law, as opposed to just copyright. And some political lobbying about the kinds of rules copyright owners should be able to impose and enforce under copyright law. They wanted to distinguish EULAs and NDAs—contract, bad—from licenses—good. Arguably, Moglen and friends were overtaken by legal decisions on both fronts.
Nimmer, our go-to treatise on copyright law, more openly acknowledges the deep links between copyright and contract law. Despite the fact that in the US, copyright law is federal (national) law and contract law is primarily state law.
For the vast majority of people and firms, all of this is political trivia.
Note that "license" is a US concept that does not exist in Europe. Licenses here are systematically interpreted as full fledged contracts and fall under contract law.
Have to point out how this seemingly minor point in parenthesis really highlights how the comment is wrong and misplaced for a good chunk of the world.
P.S. Not trying to criticize here, just pointing out that copyright is vast and complex.