[linux-audio-user] Licences are *not* contracts (Was: Re: Free Software vs. Open Source)

I Am Not A Lawyer, but I've paid for enough legal advice
on matters like this to recognize misinformation when I see it.

On 02/20/2006 11:15 PM, fons adriaensen wrote:
> The moral part results from your accepting the terms of the
> license, which is a contract between you and the creator of
> the software you buy.

No, it isn't; licences are *not* contracts, and never have been.

Licences are so called because they grant you permission
to do something, but that's all they can do; they cannot oblige
you to do anything. Furthermore, a licence agreement, no matter
how sternly worded, cannot take away rights granted to you by
other legal authorities.

A contract *can* limit what you can do, but contracts require legal
niceties, such as "a meeting of minds" and "consideration",
neither of which are possible in a shrink-wrap licence agreement.
Even if a licence agreement claims it's a contract, it isn't.

For example, if your local laws already permit you to make copies of
a CD for personal use, then an accompanying licence agreement
that says you may not copy it is irrelevant, since you already
have permission to copy it, and you don't need it again.
No matter how much that annoys the CD's creators, they would
have no legal power to restrict your copying when the
law lets you do it anyway.

Also, if a licence agreement only grants you permission
to do something under certain conditions ("you may only run
this software if you don't reverse engineer it"), you might be
allowed to do it anyway, since there are many laws that already
grant you permission to do things without needing to agree to the
licensor's terms.

So the GPL, under which Linux is distributed, does not grant you
permission to *use* GPLed software, since you generally already have
that permission if you acquired the software legally, and no licence
agreement could take that permission away. But you *don't* have
permission to distribute the software unless you accept the GPL,
since nothing else already grants you permission to do it;
this is the basis for the GPL's power in keeping software free.

See a local lawyer for more details about what you're actually
allowed to do with the stuff you've bought, irrespective of
any bellicose legal verbiage that came with it.

-- 
Frank Wales [frank@email-addr-hidden]