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<H1>Problems in Open Source Licensing<A CLASS="sdfootnoteanc" NAME="sdfootnote1anc" HREF="#sdfootnote1sym"><SUP>1</SUP></A></H1>
<H4>By Jeremy Malcolm<A CLASS="sdfootnoteanc" NAME="sdfootnote2anc" HREF="#sdfootnote2sym"><SUP>2</SUP></A></H4>
<H2>Introduction</H2>
<P>It is all too easy to assume that open source software licences<A CLASS="sdfootnoteanc" NAME="sdfootnote3anc" HREF="#sdfootnote3sym"><SUP>3</SUP></A>
are valid and enforceable. Many of them have been written by
lawyers, and even some of those that haven't, seem to have stood the
test of time pretty well. But the truth is that to assume that a
software licence is not only valid, but valid throughout the world,
and safe from being revoked, is not merely optimistic but certainly
wrong.</P>
<P>In this paper I intend to point out some of the little-known
problems associated with the use of open source software licences, at
least in the context of the Australian legal system. However it is
not all bad news, as I will also discuss some of the strengths of the
common open source software licenses. I will conclude with some
suggestions on how we can ensure that the open source licenses we use
will hold water in the event that they are legally challenged.</P>
<H2>What isn't a software licence?</H2>
<P>A software licence is not necessarily a contract. It can be, but
that requires a couple of preconditions to be satisfied.<A CLASS="sdfootnoteanc" NAME="sdfootnote4anc" HREF="#sdfootnote4sym"><SUP>4</SUP></A>
One of those preconditions is the existence of consideration on both
sides. Consideration is a legal concept that simply means a
quid-pro-quo, or something of value given by each party in exchange
for what the other party provides. In the case of open source
software, there usually isn't anything provided by the licensee of
the software (that is, the person who uses it) back to the licensor
(usually, the person who wrote it). As a consequence of this lack of
consideration there is no contract between the licensee and licensor.</P>
<P>There may be other preconditions of the existence of a contract
that are also missing. One is that the contract must be accepted by
the licensee, and that acceptance must be manifested in some way.
This doesn't necessarily mean signing on the dotted line, but it it
does require that you have been given an adequate opportunity to
accept or reject the terms of the contract, and that you have made a
conscious and visible decision to accept.</P>
<P>We believe for example that clicking on an "I agree"
icon can be sufficient to indicate assent to a contract; these are
known as "click-wrap" agreements, and at least in one case
in America the courts have upheld this form of agreement.<A CLASS="sdfootnoteanc" NAME="sdfootnote5anc" HREF="#sdfootnote5sym"><SUP>5</SUP></A>
On the other hand simply receiving a set of licence conditions in
the documentation of software isn't necessarily enough to create a
contract between the licensor and licensee. Later, I will be
discussing an Australian case which suggests that sufficiently
prominent notices in the documentation are enough to indicate the
licensee's agreement to the software terms, but it is fair to say
that there are relevant decisions going both ways<A CLASS="sdfootnoteanc" NAME="sdfootnote6anc" HREF="#sdfootnote6sym"><SUP>6</SUP></A>
and that the law on that question therefore remains unsettled.</P>
<H2>What is a software licence?</H2>
<P>Even if we don't have a contract, either due to lack of
consideration or lack of acceptance, we do still have copyright.
Copyright automatically exists in computer software, and it lasts for
50 years<A CLASS="sdfootnoteanc" NAME="sdfootnote7anc" HREF="#sdfootnote7sym"><SUP>7</SUP></A>
(or in the USA 70 years<A CLASS="sdfootnoteanc" NAME="sdfootnote8anc" HREF="#sdfootnote8sym"><SUP>8</SUP></A>)
after the death of the author. It gives us the exclusive right to
control who makes copies of our software and who creates modified
versions of it. If we wanted to, we could use copyright to stop
anyone from receiving a copy of our software at all.</P>
<P>As it happens, we are much more generous than that, and we want to
encourage people to copy and modify our software. But we are allowed
to put conditions on our generosity. These are the same kind of
conditions that the owner of land can impose on the right of visitors
to their land, for example "if you enter this shop we can check
your bags", or "persons entering this building site do so
at their own risk". These are not contractual conditions, they
are licence conditions.</P>
<P>A licence does not grant you a legal right to the property that is
being licensed to you. All it does is to make something lawful that
would otherwise be unlawful.<A CLASS="sdfootnoteanc" NAME="sdfootnote9anc" HREF="#sdfootnote9sym"><SUP>9</SUP></A>
Therefore, unlike in the case of a contract, the conditions that are
placed on a licence can't give the licensor any more rights or powers
than he already has. All they can do is place limits or conditions
on the licensee's entitlement to exercise the rights that copyright
law grants exclusively to the licensor.
</P>
<P>The Free Software Foundation's lawyer, Eben Moglen, has described
the distinction in this way:</P>
<P STYLE="margin-left: 0.5in">[M]ost proprietary software companies
want more power than copyright alone gives them. These companies say
their software is "licensed" to consumers, but the license
contains obligations that copyright law knows nothing about. Software
you're not allowed to understand, for example, often requires you to
agree not to decompile it. Copyright law doesn't prohibit
decompilation, the prohibition is just a contract term you agree to
as a condition of getting the software when you buy the product under
shrink wrap in a store, or accept a "clickwrap license" on
line. Copyright is just leverage for taking even more away from
users.<A CLASS="sdfootnoteanc" NAME="sdfootnote10anc" HREF="#sdfootnote10sym"><SUP>10</SUP></A></P>
<P>So what kind of licence conditions can we legally impose on the
use of open source software, in the absence of a contract? In
general, we can impose conditions that restrict the right to copy the
software, because this is one of the exclusive rights that copyright
grants to the licensor. We can also impose conditions that restrict
the licensee's ability to modify the software. But we probably
cannot restrict their right to run the software,<A CLASS="sdfootnoteanc" NAME="sdfootnote11anc" HREF="#sdfootnote11sym"><SUP>11</SUP></A>
nor require them to destroy their copy of the software if the licence
is revoked, or require them to allow the licensor into their premises
to perform a software audit, because these are not rights that the
licensor possesses under copyright law.</P>
<P>It is not quite as simple as that though, because a clever licence
agreement can be drafted to make almost any condition into a
restriction on the the right to copy ("by copying this software
for your own use you must allow us to monitor your computer for
license infringements"). At what point does an obligation of
the licensee cease to be enforceable as a licence condition, and
become an undertaking which requires a contract in order to be
enforceable? The answer, such as it is, is that it depends on what a
court of law is willing to enforce.</P>
<P>Because there is no enforceable contract, if the licence
conditions are breached, the licensor's action against the licensee
is simply an action for breach of copyright. A court hearing such an
action is entitled to refuse to enforce a licence condition (or to
award damages for its breach) if it goes too far outside the scope of
copyright law and into the realm of private ordering. The only guide
that we have is that in order to be enforceable, a licence condition
must be "reasonable".<A CLASS="sdfootnoteanc" NAME="sdfootnote12anc" HREF="#sdfootnote12sym"><SUP>12</SUP></A>
Given the dearth of authority on what amount to "reasonable"
software licence conditions, the enforceability of a given condition
can only be determined on a case-by-case basis.
</P>
<P>In light of these principles, let us briefly have a look at some
of the common open source licences to see what sort of conditions
they impose and to make an educated assessment about whether they
would be enforceable as licence conditions, rather than as
contractual conditions.</P>
<H2>Common licences</H2>
<H4>GNU General Public License</H4>
<P>The preamble to the GNU General Public License<A CLASS="sdfootnoteanc" NAME="sdfootnote13anc" HREF="#sdfootnote13sym"><SUP>13</SUP></A>
(GPL)<A CLASS="sdfootnoteanc" NAME="sdfootnote14anc" HREF="#sdfootnote14sym"><SUP>14</SUP></A>
makes much of the fact that "licenses for most software are
designed to take away your freedom" whereas the GPL "is
intended to guarantee your freedom to share and change free
software". It is true that a licensor under the GPL does gives
up many of its exclusive rights to control the copying and
modification of the software, in that it allows the licensee:</P>
<UL>
<LI><P>To distribute verbatim copies;<A CLASS="sdfootnoteanc" NAME="sdfootnote15anc" HREF="#sdfootnote15sym"><SUP>15</SUP></A></P>
<LI><P>To modify copies or parts of them;<A CLASS="sdfootnoteanc" NAME="sdfootnote16anc" HREF="#sdfootnote16sym"><SUP>16</SUP></A>
and</P>
<LI><P>To copy and distribute modified copies of the program.<A CLASS="sdfootnoteanc" NAME="sdfootnote17anc" HREF="#sdfootnote17sym"><SUP>17</SUP></A></P>
</UL>
<P>However, the GPL also imposes certain significant limits on the
rights of copying and distribution of the software that it grants,
namely:</P>
<UL>
<LI><P>a copy of the licence must be distributed with the software;<A CLASS="sdfootnoteanc" NAME="sdfootnote18anc" HREF="#sdfootnote18sym"><SUP>18</SUP></A></P>
<LI><P>interactive programs must display a notice that describes the
licensing terms;<A CLASS="sdfootnoteanc" NAME="sdfootnote19anc" HREF="#sdfootnote19sym"><SUP>19</SUP></A></P>
<LI><P>a copy of the source code must be included or otherwise made
available to the licensee;<A CLASS="sdfootnoteanc" NAME="sdfootnote20anc" HREF="#sdfootnote20sym"><SUP>20</SUP></A>
and</P>
<LI><P>distribution of the software is not permitted except on the
terms that the GPL provides.<A CLASS="sdfootnoteanc" NAME="sdfootnote21anc" HREF="#sdfootnote21sym"><SUP>21</SUP></A></P>
</UL>
<P>The GPL also regulates modification (also known as the creation of
"derivative works") of the software; another exclusive
right of the copyright owner:</P>
<UL>
<LI><P>any modifications must be documented;<A CLASS="sdfootnoteanc" NAME="sdfootnote22anc" HREF="#sdfootnote22sym"><SUP>22</SUP></A>
and</P>
<LI><P>derivative works must be licensed under the GPL.<A CLASS="sdfootnoteanc" NAME="sdfootnote23anc" HREF="#sdfootnote23sym"><SUP>23</SUP></A></P>
</UL>
<P>Are these conditions enforceable? Although an authoritative
answer cannot be given until the GPL is tested in court, all
indications are that these are exactly the kind of conditions that
can be successfully attached to a non-contractual software licence,
since they only affect the distribution and modification of the
software, which are within the right of the copyright owner to
control. They do not purport to impose any conditions on a person
who simply acquires the software for their own use, which many other
software licences including shareware licences do try to do.</P>
<P>The most controversial clause of the GPL is probably clause 2(b)
which gives it its "viral" quality, in that it requires any
works derived from the software also to be distributed under the
GPL.<A CLASS="sdfootnoteanc" NAME="sdfootnote24anc" HREF="#sdfootnote24sym"><SUP>24</SUP></A>
Legally however there is nothing exceptional about that condition,
given that most software licences prohibit derivative works from
being produced at all.</P>
<P>Perhaps more questionable legally are the restrictions on the
user's rights to sue for breach of implied warranties<A CLASS="sdfootnoteanc" NAME="sdfootnote25anc" HREF="#sdfootnote25sym"><SUP>25</SUP></A>
and tortious claims<A CLASS="sdfootnoteanc" NAME="sdfootnote26anc" HREF="#sdfootnote26sym"><SUP>26</SUP></A>
(for example, claims for damages arising out of loss of data caused
by the programmer's negligence). These have nothing to do with the
licensor's exclusive rights under copyright law, and therefore in the
absence of a binding contract these conditions are unlikely to be
enforceable as terms of the licence.</P>
<P>However, this does not mean that they are completely ineffectual.
The law has a saying that there can be no injury done to someone who
consents,<A CLASS="sdfootnoteanc" NAME="sdfootnote27anc" HREF="#sdfootnote27sym"><SUP>27</SUP></A>
and that is the basis for the effect of these clauses. Whilst such
disclaimers are not always effective,<A CLASS="sdfootnoteanc" NAME="sdfootnote28anc" HREF="#sdfootnote28sym"><SUP>28</SUP></A>
the licensor of proprietary software<A CLASS="sdfootnoteanc" NAME="sdfootnote29anc" HREF="#sdfootnote29sym"><SUP>29</SUP></A>
is in no better position than his or her counterpart in the open
source community. The proprietary software licensor may in fact be
in a more difficult position by reason that it is reasonable for the
licensee to have higher expectations; they expect to get what they
are paying for.</P>
<P>Overall, then, the provisions of the GPL receive a qualified tick
of approval under Australian law. Because the GPL does not attempt
to interfere with matters unconnected with the licensor's exclusive
rights under copyright law, its provisions are likely to be just as
enforceable as the provisions of a contractual licence for
proprietary software.</P>
<H4>GNU Lesser General Public License</H4>
<P>I will spend a much shorter time in dealing with the other open
source licences. The Lesser (formerly Library) General Public
License (LGPL)<A CLASS="sdfootnoteanc" NAME="sdfootnote30anc" HREF="#sdfootnote30sym"><SUP>30</SUP></A>
can be distinguished from the GPL in two relevant respects. Firstly,
it specifies that it is only to be used for software libraries,
although in fact it is commonly used for other software also.<A CLASS="sdfootnoteanc" NAME="sdfootnote31anc" HREF="#sdfootnote31sym"><SUP>31</SUP></A>
Second, it allows the software to be linked with proprietary code,
which the GPL does not. Essentially, the LGPL can be regarded as a
non-viral form of the GPL that is intended for software libraries
only.</P>
<P>These two distinctions from the GPL don't have any impact upon the
enforceability of the licence. That is not to say that there aren't
some traps in using the LGPL; the distinction between a derivative
work which has to be distributed under the LGPL, and a work that just
uses the library which doesn't have to, can be slippery. Another
tricky issue is exactly what you can distribute together and what you
can't.</P>
<P>However, to go any further into those issues would take me beyond
the scope of this paper. Suffice it to say, the LGPL should be just
as enforceable as the GPL is.</P>
<H4>The BSD License</H4>
<P>The BSD licence<A CLASS="sdfootnoteanc" NAME="sdfootnote32anc" HREF="#sdfootnote32sym"><SUP>32</SUP></A>
is the shortest and simplest of the common licences, at only 225
words compared to the GPL's 2968 and the LGPL's 4380. Its simplicity
makes it the more likely to be enforceable as a whole than either of
those other licences. It allows the software to be used and modified
freely, subject only to the retention of attribution of the work of
previous contributors.</P>
<P>The main effective difference between the BSD licence and the GPL
is that derivative works are not required to be licensed freely, but
can be relicensed under a proprietary licence. Unlike the LGPL, this
doesn't just apply to programs that are linked with the original
code.</P>
<P>The original BSD licence<A CLASS="sdfootnoteanc" NAME="sdfootnote33anc" HREF="#sdfootnote33sym"><SUP>33</SUP></A>
also contained a clause which required the code to contain an
acknowledgment sentence in any advertising materials, whereas the
revised BSD licence that was released in 1999 does not. Some other
simple open source licences in a similar vein to the BSD licence
include the Apache licence<A CLASS="sdfootnoteanc" NAME="sdfootnote34anc" HREF="#sdfootnote34sym"><SUP>34</SUP></A>
(which also contained an advertising clause in its original
version<A CLASS="sdfootnoteanc" NAME="sdfootnote35anc" HREF="#sdfootnote35sym"><SUP>35</SUP></A>),
and the MIT X11 licence.<A CLASS="sdfootnoteanc" NAME="sdfootnote36anc" HREF="#sdfootnote36sym"><SUP>36</SUP></A></P>
<H4>The Mozilla Public License</H4>
<P>The Mozilla Public License (MPL)<A CLASS="sdfootnoteanc" NAME="sdfootnote37anc" HREF="#sdfootnote37sym"><SUP>37</SUP></A>
is a much more comprehensive contractual-style licence document,
which like the GPL requires derivative works to be freely licensed
(although not necessarily under the MPL<A CLASS="sdfootnoteanc" NAME="sdfootnote38anc" HREF="#sdfootnote38sym"><SUP>38</SUP></A>).
Its cousin the Netscape Public License (NPL)<A CLASS="sdfootnoteanc" NAME="sdfootnote39anc" HREF="#sdfootnote39sym"><SUP>39</SUP></A>
is based on the MPL but grants the original software creator, namely
Netscape in this instance, rights to use the software together with
any derivative works in its own proprietary software.<A CLASS="sdfootnoteanc" NAME="sdfootnote40anc" HREF="#sdfootnote40sym"><SUP>40</SUP></A></P>
<P>The MPL contains some very good clauses dealing with the possible
existence of third party intellectual property claims or patent
rights over contributed code,<A CLASS="sdfootnoteanc" NAME="sdfootnote41anc" HREF="#sdfootnote41sym"><SUP>41</SUP></A>
and clauses detailing how the contributions of developers are to be
documented.<A CLASS="sdfootnoteanc" NAME="sdfootnote42anc" HREF="#sdfootnote42sym"><SUP>42</SUP></A>
There is also a clause<A CLASS="sdfootnoteanc" NAME="sdfootnote43anc" HREF="#sdfootnote43sym"><SUP>43</SUP></A>
which states that if your licence to use the software is terminated
because you have breached its terms, that does not affect any
sublicences that you may have granted to other people.<A CLASS="sdfootnoteanc" NAME="sdfootnote44anc" HREF="#sdfootnote44sym"><SUP>44</SUP></A></P>
<P>Once again, we have encountered nothing that takes these licences
outside the scope of what can be legally enforced in the absence of a
contract.</P>
<H4>The Artistic License</H4>
<P>Software licensed under the Artistic License<A CLASS="sdfootnoteanc" NAME="sdfootnote45anc" HREF="#sdfootnote45sym"><SUP>45</SUP></A>
may be freely distributed and modified, provided that any
modifications are documented and in some cases<A CLASS="sdfootnoteanc" NAME="sdfootnote46anc" HREF="#sdfootnote46sym"><SUP>46</SUP></A>
made freely available. Like the MPL but unlike the GPL, the Artistic
License does not require derivative works to be licensed under the
same terms as the original.</P>
<P>The Artistic License in its most widely-used version suffers from
loose wording, however version 2.0 of the licence, which will cover
Perl version 6 when released, addresses these concerns. Even in its
earlier form, it is unlikely that an Australian court would refuse to
give effect to any part of this licence.</P>
<P>So having reviewed a selection of the best-known open source
software licences, it appears that the prognosis is good. None of
them contain any provisions that I have identified as being
unenforceable under Australian law. For such a revolutionary mode of
licensing as open source is, it is gratifying and perhaps a little
surprising that it appears to be so compatible with traditional
copyright law.</P>
<P>In fact the further we stray away from the Open Source
Definition<A CLASS="sdfootnoteanc" NAME="sdfootnote47anc" HREF="#sdfootnote47sym"><SUP>47</SUP></A>,
the more problems with enforceability we will find. The Microsoft
Shared Source family of licences are a classic example, in that they
attempt to restrict the commercial use of the software by the
licensee. As noted earlier, copyright law has nothing to say about
the use of software, only such acts as its copying and modification.<A CLASS="sdfootnoteanc" NAME="sdfootnote48anc" HREF="#sdfootnote48sym"><SUP>48</SUP></A>
Consequently, unless you have a contract with Microsoft for the
provision of shared source software, the parts of that licence that
purport to prohibit you from making commercial use of the software
are almost certainly unenforceable.</P>
<H2>Why contracts are better than licences</H2>
<H4>Relicensing</H4>
<P>So far, so good; each of the open source licences we have examined
appears to be legally sound. But what happens if the licensor of an
open source software program wishes to change the conditions under
which it is licensed? It is in this circumstance that we encounter
the biggest deficiency of licence conditions as against contractual
conditions. Because the licensee hasn't given any consideration in
exchange for the software, the licence can be revoked by the licensor
at any time simply by giving notice to the licensee.<A CLASS="sdfootnoteanc" NAME="sdfootnote49anc" HREF="#sdfootnote49sym"><SUP>49</SUP></A></P>
<P>In the context of software licensing, this means that there is
nothing that can be done to stop the licensor from changing the
licence conditions, including makinq them non-free or withdrawing the
software altogether. It doesn't matter if an open source licence
claims to be irrevocable. Because the licence hasn't been paid for,
it isn't.</P>
<P>The result of this is that in a worst case scenario, a copyright
owner could release a program under an open source licence,
distribute it to 10,000 users and then change the licensing
conditions to require payment of an annual license fee. If after a
reasonable time any licensees are still using<A CLASS="sdfootnoteanc" NAME="sdfootnote50anc" HREF="#sdfootnote50sym"><SUP>50</SUP></A>
the software in breach of the license conditions, they are liable to
be sued for copyright infringement.<A CLASS="sdfootnoteanc" NAME="sdfootnote51anc" HREF="#sdfootnote51sym"><SUP>51</SUP></A></P>
<P>This is one of the best kept secrets of the open source movement,
and unsurprisingly it is not consistent with the public position of
the Free Software Foundation (FSF).<A CLASS="sdfootnoteanc" NAME="sdfootnote52anc" HREF="#sdfootnote52sym"><SUP>52</SUP></A>
Richard M Stallman (RMS) has posed and answered this Frequently
Asked Question on the FSF's Web site:</P>
<P STYLE="margin-left: 0.5in">Can the developer of a program who
distributed it under the GPL later license it to another party for
exclusive use?</P>
<P STYLE="margin-left: 0.5in">No, because the public already has the
right to use the program under the GPL, and this right cannot be
withdrawn.<A CLASS="sdfootnoteanc" NAME="sdfootnote53anc" HREF="#sdfootnote53sym"><SUP>53</SUP></A></P>
<P>There isn't any legal authority cited in support of that
proposition. In fact, it seems to contradict clause 9 of the GPL
which explicitly acknowledges that GPL software can be relicensed
when a new version of the GPL is released. So although RMS may be
correctly stating the law in some States of America<A CLASS="sdfootnoteanc" NAME="sdfootnote54anc" HREF="#sdfootnote54sym"><SUP>54</SUP></A>
(and he is literally correct that people can go on using the
software, so long as they don't distribute it or modify it), he is
without doubt incorrect as to the position in Australia.</P>
<H4>It gets worse</H4>
<P>As if that isn't bad enough, there are a few scary, but less
obvious corollaries of the revocability of open source licences:</P>
<OL>
<LI><P>It seems to have been presumed by many people that if
software is relicensed then that only applies to future versions of
the software; it can't retrospectively effect versions that were
released under the original license. This is a false assumption. If
for example the original developer of SSH wanted to relicense all
existing versions of the software developed by him, including the
GPL version that OpenSSH is based on, that could legally be done. We
are fortunate that it hasn't been done in any high-profile project
so far. The prospect that it could happen to something like the
Linux kernel doesn't bear thinking about.</P>
<LI><P>Even if we would trust the author of software not to revoke
its open source licence, all bets are off if the author assigns the
copyright to someone else (that is, sells it, gives it away, or
passes it by will). In a case from two years ago that many of you
will remember, two young programmers, Matthew Skala and Eddie
Jansson, released a program called cphack which was designed to
decrypt the database of blocked URLs embedded in Mattel's
proprietary Web-filtering software, CyberPatrol. Mattel induced the
programmers to assign their copyright in the software over to it.
However Wired magazine reported the following day that cphack had
already been released under the GPL, with two possible outcomes:
either that the GPL prevailed over the assignment of copyright to
Mattel, or that that licence could be revoked by Mattel.<A CLASS="sdfootnoteanc" NAME="sdfootnote55anc" HREF="#sdfootnote55sym"><SUP>55</SUP></A>
It turned out that this was a false issue because the software
actually wasn't released under the GPL at all. But if it had been,
Mattel could certainly have revoked the licence,<A CLASS="sdfootnoteanc" NAME="sdfootnote56anc" HREF="#sdfootnote56sym"><SUP>56</SUP></A>
unless the assignment of copyright left the original authors with a
residual interest in the software that could continue to support the
licence.</P>
<LI><P>In the case of a fork in the development of software, both
branches of the fork inherit the licence conditions of the root
package. This does not necessarily mean that the forked packages
cannot be relicensed if the root package allows that, but what it
does mean is that those sub-licenses remain subject to the
continuance of the head licence. As soon as they become inconsistent
with the head licence, they will be invalid to the extent of the
inconsistency. The legal principle that lies behind this is that
you cannot give what you do not have.<A CLASS="sdfootnoteanc" NAME="sdfootnote57anc" HREF="#sdfootnote57sym"><SUP>57</SUP></A>
In other words if you do not have an irrevocable licence yourself,
you cannot grant an irrevocable licence to anyone else. The most
you can do is to grant a licence that is subject to being withdrawn
or modified at any time.</P>
</OL>
<H2>Fear, Uncertainty and Doubt?</H2>
<P>Do we really need to worry about the scenarios I have described
above? Yes unfortunately we do, but there are three mitigating
factors that might give us some comfort.</P>
<H4>Multiple licensors</H4>
<P>Often there is more than one copyright holder for an open source
program. This can either take the form of joint ownership of the
copyright (where several authors share copyright over the work as a
whole), or a set of individual ownerships of copyright over
particular files, patches or forked derivative works. Taking first
the case of joint ownership, it would be necessary for all of the
copyright owners to agree to withdraw an open source licence. This
is not so much of a legal limitation on the relicensing of open
source software as a practical one, but it does provide an extra
measure of protection for users in comparison to the position of a
single copyright owner who can unilaterally relicence the software.</P>
<P>On the other hand in the case where there are multiple separate
copyrights contained in software, the news is not so good. In that
case, any individual copyright owner can change the licensing
conditions of what they have contributed, which may result either in
the package as a whole becoming non-free, or in that contributed code
having to be excised from the software. This is similar to what
happened when the University of California Berkeley was required to
excise the AT&T code from the 4.4BSD distribution.<A CLASS="sdfootnoteanc" NAME="sdfootnote58anc" HREF="#sdfootnote58sym"><SUP>58</SUP></A></P>
<H4>Estoppel</H4>
<P ALIGN=LEFT>There may be scope to argue that a licensor is
precluded from changing the licence conditions on software if he or
she misled the licensee into relying on the continuance of the
existing terms in the knowledge that the licensee would be
detrimentally affected by that reliance if the terms were changed.</P>
<P ALIGN=LEFT>The argument would be based on a legal doctrine called
estoppel, which can prohibit you from exercisinq your legal rights -
in this case, the right to change the licence conditions - if you
have allowed someone else to rely on the fact that you wouldn't
exercise those rights. In light of the rhetoric that is often
bandied about to the effect of "Once GPL, always GPL",
circumstances could well exist in which this argument would be quite
persuasive.</P>
<P ALIGN=LEFT>The question is, can estoppel restrict a licensor from
changing their licence conditions to the user community as a whole,
or only one particular licensee? Probably only the latter, since it
is generally impossible to demonstrate reliance, which is one of the
elements of estoppel, except on a case-by-case basis. <A CLASS="sdfootnoteanc" NAME="sdfootnote59anc" HREF="#sdfootnote59sym"><SUP>59</SUP></A>
This reduces the usefulness of the estoppel argument to combat the
withdrawal of open source licensing of a package that is in
widespread use. At best, one open source licensee's victory will
cause the licensor to reconsider enforcing the new license terms
against other former licensees.</P>
<P ALIGN=LEFT>Another limitation of the estoppel argument is that a
court would not necessarily compensate a licensee who had been misled
into relying on the continuity of an open source licence by requiring
the licensor to reinstate that license; it would be equally open for
the court simply to order the licensor to pay damages. Those damages
might be negligible unless the licensee has significant business
interests riding on the use of the package.</P>
<H4>Consideration revisited</H4>
<P>Perhaps we can argue that there is some consideration on both
sides of an open source licence agreement after all, and that the
agreement is therefore enforceable as a contract. This would allow
the agreement to be made irrevocable.</P>
<P>Take the example of the GPL. The licensee of GPL software does
appear to be giving something in exchange for the use of the
software. Firstly, the licensee makes a number of promises that I
have described earlier, for example, to make the source code
available at no charge when distributing the software, and to
document any modifications. Second, the licensee is required to
accept all risks involved in the use of the software. Surely these
are worth something?</P>
<P>Unfortunately as far as the law is concerned, they are not. The
GPL explicitly states, "Activities other than copying,
distribution and modification are not covered by this License; they
are outside its scope."<A CLASS="sdfootnoteanc" NAME="sdfootnote60anc" HREF="#sdfootnote60sym"><SUP>60</SUP></A>
Therefore there is no requirement on licensees to distribute the
software at all, and if they don't, they are not agreeing to anything
and not providing any consideration. The law takes the position that
consideration isn't acceptable if the licensee has a choice about
whether or not to provide it.<A CLASS="sdfootnoteanc" NAME="sdfootnote61anc" HREF="#sdfootnote61sym"><SUP>61</SUP></A></P>
<P>As for the licensee's acceptance of liability for faults in the
software, this doesn't amount to sufficient consideration either,
because there may not be any faults, or if there are, the licensee
might not suffer any loss from them, or none that can be blamed on
the licensor. It is only if the licensee actually has an existing
right to sue the licensor, or at least honestly believes that he
does, that an agreement not to sue can amount to good consideration.<A CLASS="sdfootnoteanc" NAME="sdfootnote62anc" HREF="#sdfootnote62sym"><SUP>62</SUP></A></P>
<H2>The law in Australia</H2>
<P>Apart from the general principles that I have outlined, there is
no law in Australia specifically concerning open source software
licences. The closest that we have is a case on shareware licences;
<I>Trumpet Software Pty Ltd v OzEmail Pty Ltd</I>.<A CLASS="sdfootnoteanc" NAME="sdfootnote63anc" HREF="#sdfootnote63sym"><SUP>63</SUP></A>
In this Federal Court case, the author of Trumpet Winsock sued what
was then Australia's largest commercial Internet Service Provider,
OzEmail, for breaching the shareware licence of Trumpet Winsock by
distributing the program to its users after its licence to do so had
been revoked, and in any case, in breach of what would have been the
terms of its licence to do so.<A CLASS="sdfootnoteanc" NAME="sdfootnote64anc" HREF="#sdfootnote64sym"><SUP>64</SUP></A>
The breach would have been committed by OzEmail's modification of
the software's configuration files without documenting those
modifications, and its failure to distribute some of the
documentation. This type of breach is especially relevant for
present purposes, because it would be a breach of the GPL also.</P>
<P>The dispute came about when OzEmail wished to distribute copies of
the unregistered version of Trumpet Winsock on the front cover of
Australian Personal Computer magazine. The managing director of
OzEmail contacted the author Peter Tattam and requested his
permission to include the program on the cover disk, but permission
was refused on the ground that the version that OzEmail sought to
distribute did not come with a timelock to disable it after 30 days.
Tattam did give permission to distribute a time-locked version of the
software, but as the time-locked version was not available by press
time, OzEmail distributed the unlocked version instead. OzEmail took
the view that regardless of Tattam's specific refusal of permission
for it to distribute the unlocked version, the shareware licence
itself prevailed over what Tattam had said, and it allowed the
distribution to go ahead.</P>
<P>The Court found that the opposite was the case. Justice Heerey
said:</P>
<P STYLE="margin-left: 0.5in">Determinative of this case in my
opinion is the proposition that, prior to the distributions
complained of, Mr Tattam expressly told OzEmail that he objected to
OzEmail using Trumpet Winsock 2.0B and thus revoked any licence
OzEmail might have had.<A CLASS="sdfootnoteanc" NAME="sdfootnote65anc" HREF="#sdfootnote65sym"><SUP>65</SUP></A></P>
<P>It was found in the alternative that if OzEmail's licence to
distribute the software had not been revoked, OzEmail had breached
the terms of the licence by making the modifications to the software
that it did.</P>
<P>So what does this tell us about open source software licences?
The case contains good and bad implications. On the positive side,
it tells us that the licence terms of a non-contractual software
licence agreement can be enforced, including terms which prohibit the
software from being distributed with modifications or deletions that
the licensor has not decided to permit.</P>
<P>However, the case also confirms that a software licence that is
granted without consideration can be revoked by the licensor at any
time so long as notice of the revocation is conveyed to the licensee;
this is not such good news for the open source software community.</P>
<H2>Strategies</H2>
<P>The ideal solution to the problems that have been identified would
be the introduction of legislative reforms to provide a regime for
the enforcement of open source licences by both licensors and
licensees. Such an enforcement mechanism would allow the licensor to
prevent licensees from infringing the terms of the licence, even if a
commercial loss by the licensor could not be shown. But it would
also allow the licensee to enforce a term of an open source licence
that was intended to make it irrevocable, even if the licensee had
provided no consideration for the licence.</P>
<P>In the absence of such legislative reforms, there is a simple step
that can be taken towards improving certainty for open source
licensees and licensors. This is to vest copyright of open source
software in a person or body who can be trusted not to withdraw or
detrimentally alter its open source licence. This will require
copyright of the source code in the original package, and the source
code of any modifications, to be assigned to the trusted person or
body by a written document signed by the licensor.</P>
<P>The Free Software Foundation encourages contributors to its
projects either to assign copyright of their contributions to the
Foundation, or to disclaim copyright in those contributions,<A CLASS="sdfootnoteanc" NAME="sdfootnote66anc" HREF="#sdfootnote66sym"><SUP>66</SUP></A>
thereby placing them in the public domain.<A CLASS="sdfootnoteanc" NAME="sdfootnote67anc" HREF="#sdfootnote67sym"><SUP>67</SUP></A>
Ironically, unlike a license, an assignment of copyright is
enforceable without consideration, so long as it is made in writing.<A CLASS="sdfootnoteanc" NAME="sdfootnote68anc" HREF="#sdfootnote68sym"><SUP>68</SUP></A></P>
<P>For software that is not GPL-licensed, the FSF does not accept
assignments of copyright. For such software, it is best for the
assignment of copyright to be made to the lead developer, as for
example in the case of contributions to the OpenOffice.org project
which are required to be jointly<A CLASS="sdfootnoteanc" NAME="sdfootnote69anc" HREF="#sdfootnote69sym"><SUP>69</SUP></A>
assigned to Sun Microsystems.<A CLASS="sdfootnoteanc" NAME="sdfootnote70anc" HREF="#sdfootnote70sym"><SUP>70</SUP></A></P>
<P>In addition to providing certainty as to the licensing terms of a
software project, the other advantage of assigning copyright to a
trusted body is that it can then assume responsibility for
enforcement of the licence in court. If you are working on a project
that derives code from a variety of sources all of which are
separately licensed, it would be necessary for all of the licensors
to join together in any court action, and in most cases this will be
impractical.</P>
<H2>Conclusion</H2>
<P>It would be redundant to observe that open source licensing is
here to stay, regardless of its recognition by the law. The
legislative reforms that I have proposed would provide a greater
level of certainty to both users and developers of open source
software, but I am not naïve enough to suppose that there is
much prospect of them being passed here, let alone also in the United
States and the European Community.</P>
<P>We must therefore make the best of what we have. What we have is
a development model that is capable of producing the best software in
the world, and a community that is full of brilliant, enthusiastic
and altruistic developers. We owe it to them to do whatever we can
to ensure their work remains free. Giving careful consideration to
the form of licence that you select for a software project, and to
who the copyright owner should be, is a good first step to take,
while we all wait for the law to catch up.</P>
<DIV ID="sdfootnote1">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote1sym" HREF="#sdfootnote1anc">1</A>This
is a paper presented at Australia's national Linux conference,
Linux.conf.au on 24 January 2003. Copyright © 2003 Jeremy
Malcolm. Permission is granted to copy, distribute and/or modify
this document under the terms of the <A HREF="http://www.gnu.org/licenses/fdl.html";>GNU
Free Documentation License</A>, Version 1.2 or any later version
published by the Free Software Foundation; with no Invariant
Sections, no Front-Cover Texts, and no Back-Cover Texts.</P>
</DIV>
<DIV ID="sdfootnote2">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote2sym" HREF="#sdfootnote2anc">2</A><A HREF="mailto:Jeremy [ at ] Malcolm [ dot ] id [ dot ] au">Jeremy
Malcolm</A> is an Information Technology lawyer with a successful
niche practice in Internet-related law, and is involved at board
level in a number of relevant organisations such as the Society of
Linux Professionals of WA, the Internet Society of Australia, the
Western Australian Internet Association, the Australian Public
Access Network Association (as Secretary), the WA Society for
Computers and the Law (as President) and previously Electronic
Frontiers Australia. He has been since 1998 the Manager of Terminus
Network Services which specialises in the use of open source
software in networked environments and in the development of online
systems; he has also established the
<A HREF="http://www.linuxconsultants.com.au/";>http://www.linuxconsultants.com.au</A>
portal for Linux consultants, and is a developer of the Debian
operating system.</P>
</DIV>
<DIV ID="sdfootnote3">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote3sym" HREF="#sdfootnote3anc">3</A>For
the purposes of this paper, I will take an open source software
licence to be one that satisfies the Open Source Definition
(<A HREF="http://www.opensource.org/docs/definition.php";>http://www.opensource.org/docs/definition.php</A>).
For present purposes "open source software" and "free
software" can be treated as synonymous, although there are
distinct movements which distinguish the two and favour one term
over the other.</P>
</DIV>
<DIV ID="sdfootnote4">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote4sym" HREF="#sdfootnote4anc">4</A>Actually,
five: legal capacity, intent to enter contractual relations, an
offer, an acceptance of that offer, and consideration to support it.</P>
</DIV>
<DIV ID="sdfootnote5">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote5sym" HREF="#sdfootnote5anc">5</A><I>Hotmail
Corp v Van Money Pie, Inc</I> (1998) 47 U.S.P.Q. 2D (BNA) 1020, 1025
(N D Cal).</P>
</DIV>
<DIV ID="sdfootnote6">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote6sym" HREF="#sdfootnote6anc">6</A>Particularly
in the United States: compare <I>Step-Saver Data Systems, Inc v Wyse
Technology </I> (1991) 939 F 2d 91 (3d Cir) holding "shrink-wrap"
software licences unenforceable, with <I>ProCD, Inc v Zeidenberg</I>
(1996) 86 F 3d 1447 (7th Cir), holding them enforceable.</P>
</DIV>
<DIV ID="sdfootnote7">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote7sym" HREF="#sdfootnote7anc">7</A>Copyright
Act 1968 (Cwlth) s.33.</P>
</DIV>
<DIV ID="sdfootnote8">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote8sym" HREF="#sdfootnote8anc">8</A>17
USC 302.</P>
</DIV>
<DIV ID="sdfootnote9">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote9sym" HREF="#sdfootnote9anc">9</A><I>Thomas
v Sorrell </I>(1673) Vaugh 330.</P>
</DIV>
<DIV ID="sdfootnote10">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote10sym" HREF="#sdfootnote10anc">10</A>Moglen,
E. "Free Software Matters: Enforcing the GPL, 1" Linux
User, August 2001.</P>
</DIV>
<DIV ID="sdfootnote11">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote11sym" HREF="#sdfootnote11anc">11</A>Section
47B(2) of the Copyright Act 1968, added in 2000, appears to have
that effect. However the provision is merely a qualification to
s.47B(1) which has been held to grant no new substantive rights to
the copyright owner (see <I>Kabushiki Kaisha Sony Computer
Entertainment v Stevens</I> [2002] FCA 906). The correct
interpretation of s.47B(2) is therefore that it simply preserves the
effect of licences that restrict the right to run software and that
are independently enforceable, for example contractually.</P>
</DIV>
<DIV ID="sdfootnote12">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote12sym" HREF="#sdfootnote12anc">12</A>See
<I>Robinson v Balmain New Ferry Co. Ltd</I> [1910] AC 295, in which
the right to enter a jetty was conditioned on the payment of one
penny before being allowed to exit.</P>
</DIV>
<DIV ID="sdfootnote13">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote13sym" HREF="#sdfootnote13anc">13</A>I
will give "licence" its British English spelling except
when referring by name to a licence that uses the American spelling
in its title.</P>
</DIV>
<DIV ID="sdfootnote14">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote14sym" HREF="#sdfootnote14anc">14</A><A HREF="http://www.fsf.org/licenses/gpl.html";>http://www.fsf.org/licenses/gpl.html</A>.</P>
</DIV>
<DIV ID="sdfootnote15">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote15sym" HREF="#sdfootnote15anc">15</A>Clause
1.</P>
</DIV>
<DIV ID="sdfootnote16">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote16sym" HREF="#sdfootnote16anc">16</A>Clause
2.</P>
</DIV>
<DIV ID="sdfootnote17">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote17sym" HREF="#sdfootnote17anc">17</A>Clause
3.</P>
</DIV>
<DIV ID="sdfootnote18">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote18sym" HREF="#sdfootnote18anc">18</A>Clause
1.</P>
</DIV>
<DIV ID="sdfootnote19">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote19sym" HREF="#sdfootnote19anc">19</A>Clause
2(c).</P>
</DIV>
<DIV ID="sdfootnote20">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote20sym" HREF="#sdfootnote20anc">20</A>Clause
3.</P>
</DIV>
<DIV ID="sdfootnote21">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote21sym" HREF="#sdfootnote21anc">21</A>Clause
4.</P>
</DIV>
<DIV ID="sdfootnote22">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote22sym" HREF="#sdfootnote22anc">22</A>Clause
2(a).</P>
</DIV>
<DIV ID="sdfootnote23">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote23sym" HREF="#sdfootnote23anc">23</A>Clause
2(b).</P>
</DIV>
<DIV ID="sdfootnote24">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote24sym" HREF="#sdfootnote24anc">24</A>A
licence imposing such a requirement on derivative works is also
known as a "copyleft" licence.</P>
</DIV>
<DIV ID="sdfootnote25">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote25sym" HREF="#sdfootnote25anc">25</A>Clause
11: such terms are implied into contracts by division 2 of the Trade
Practices Act 1974 (Cwlth) and by the various State Sale of Goods
Acts and Fair Trading Acts, however these are not applicable in the
case of a non-contractual licence.</P>
</DIV>
<DIV ID="sdfootnote26">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote26sym" HREF="#sdfootnote26anc">26</A>Clause
12.</P>
</DIV>
<DIV ID="sdfootnote27">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote27sym" HREF="#sdfootnote27anc">27</A>More
commonly, <I>volenti non fit injuria</I><SPAN STYLE="font-style: normal">:
<I>Insurance Commissioner v Joyce</I> (1948) 77 CLR 39.</SPAN></P>
</DIV>
<DIV ID="sdfootnote28">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote28sym" HREF="#sdfootnote28anc">28</A>See
eg. <I>Council of the City of Sydney v West</I><SPAN STYLE="font-style: normal">
(1965) 114 CLR 481.</SPAN></P>
</DIV>
<DIV ID="sdfootnote29">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote29sym" HREF="#sdfootnote29anc">29</A>I
use the term "proprietary" in its colloquial sense, rather
than to imply that open source software is any less proprietary
(that is, a form of property) than contractually licensed software.</P>
</DIV>
<DIV ID="sdfootnote30">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote30sym" HREF="#sdfootnote30anc">30</A><A HREF="http://www.fsf.org/licenses/lgpl.html";>http://www.fsf.org/licenses/lgpl.html</A>.</P>
</DIV>
<DIV ID="sdfootnote31">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote31sym" HREF="#sdfootnote31anc">31</A>For
example, OpenOffice.org - <A HREF="http://www.openoffice.org/";>http://www.openoffice.org</A>.</P>
</DIV>
<DIV ID="sdfootnote32">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote32sym" HREF="#sdfootnote32anc">32</A><A HREF="http://www.xfree86.org/3.3.6/COPYRIGHT2.html#5";>http://www.xfree86.org/3.3.6/COPYRIGHT2.html#5</A>.</P>
</DIV>
<DIV ID="sdfootnote33">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote33sym" HREF="#sdfootnote33anc">33</A><A HREF="http://www.xfree86.org/3.3.6/COPYRIGHT2.html#6";>http://www.xfree86.org/3.3.6/COPYRIGHT2.html#6</A>.</P>
</DIV>
<DIV ID="sdfootnote34">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote34sym" HREF="#sdfootnote34anc">34</A><A HREF="http://www.apache.org/LICENSE-1.1";>http://www.apache.org/LICENSE-1.1</A>.</P>
</DIV>
<DIV ID="sdfootnote35">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote35sym" HREF="#sdfootnote35anc">35</A><A HREF="http://www.apache.org/LICENSE-1.0";>http://www.apache.org/LICENSE-1.0</A>.</P>
</DIV>
<DIV ID="sdfootnote36">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote36sym" HREF="#sdfootnote36anc">36</A><A HREF="http://www.x.org/Downloads_terms.htm";>http://www.x.org/Downloads_terms.htm</A>.</P>
</DIV>
<DIV ID="sdfootnote37">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote37sym" HREF="#sdfootnote37anc">37</A><A HREF="http://www.mozilla.org/MPL/MPL-1.1.html";>http://www.mozilla.org/MPL/MPL-1.1.html</A>.</P>
</DIV>
<DIV ID="sdfootnote38">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote38sym" HREF="#sdfootnote38anc">38</A>Clause
6.3.</P>
</DIV>
<DIV ID="sdfootnote39">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote39sym" HREF="#sdfootnote39anc">39</A><A HREF="http://www.mozilla.org/NPL/NPL-1.1.html";>http://www.mozilla.org/NPL/NPL-1.1.html</A>.</P>
</DIV>
<DIV ID="sdfootnote40">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote40sym" HREF="#sdfootnote40anc">40</A>Clause
V.</P>
</DIV>
<DIV ID="sdfootnote41">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote41sym" HREF="#sdfootnote41anc">41</A>Clauses
2.1, 2.2, 3.4.</P>
</DIV>
<DIV ID="sdfootnote42">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote42sym" HREF="#sdfootnote42anc">42</A>Clauses
3.5, 3.6.</P>
</DIV>
<DIV ID="sdfootnote43">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote43sym" HREF="#sdfootnote43anc">43</A>Clause
8.1.</P>
</DIV>
<DIV ID="sdfootnote44">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote44sym" HREF="#sdfootnote44anc">44</A>The
GPL attacks this problem in a different way, by asserting that the
"sublicence" is made not between the distributor and the
user to whom it is distributed, but rather between the original
copyright owner and the end user: clause 6.</P>
</DIV>
<DIV ID="sdfootnote45">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote45sym" HREF="#sdfootnote45anc">45</A><A HREF="http://www.perl.com/language/misc/Artistic.html";>http://www.perl.com/language/misc/Artistic.html</A>.</P>
</DIV>
<DIV ID="sdfootnote46">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote46sym" HREF="#sdfootnote46anc">46</A>But
not others. The software can be incorporated into a proprietary
product so long as it is hidden from the end user, and modified
binaries can be distributed without source so long as they are
accompanied by the unmodified files (or instructions on where to
obtain them) and documentation of the modifications.</P>
</DIV>
<DIV ID="sdfootnote47">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote47sym" HREF="#sdfootnote47anc">47</A><A HREF="http://www.opensource.org/docs/definition.php";>http://www.opensource.org/docs/definition.php</A>.</P>
</DIV>
<DIV ID="sdfootnote48">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote48sym" HREF="#sdfootnote48anc">48</A>See
also Liberman, M. "Comment, Overreaching Provisions in
Software License Agreements", (1995) 1 Rich J L & Tech 4,
<A HREF="http://www.richmond.edu/jolt/v1i1/liberman.html";>http://www.richmond.edu/jolt/v1i1/liberman.html</A>.</P>
</DIV>
<DIV ID="sdfootnote49">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote49sym" HREF="#sdfootnote49anc">49</A><I>Wood
v Leadbitter</I> (1845) 13 M & W 838.</P>
</DIV>
<DIV ID="sdfootnote50">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote50sym" HREF="#sdfootnote50anc">50</A>Or,
to be accurate, copying or modifying.</P>
</DIV>
<DIV ID="sdfootnote51">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote51sym" HREF="#sdfootnote51anc">51</A><I>Computermate
Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd</I> (1988) 20 FCR 46 at
49.</P>
</DIV>
<DIV ID="sdfootnote52">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote52sym" HREF="#sdfootnote52anc">52</A>Or
others, see eg. <A HREF="http://www.openoffice.org/FAQs/mostfaqs.html";>http://www.openoffice.org/FAQs/mostfaqs.html</A>#3.</P>
</DIV>
<DIV ID="sdfootnote53">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote53sym" HREF="#sdfootnote53anc">53</A><A HREF="http://www.gnu.org/licenses/gpl-faq.html";>http://www.gnu.org/licenses/gpl-faq.html</A>.</P>
</DIV>
<DIV ID="sdfootnote54">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote54sym" HREF="#sdfootnote54anc">54</A>The
effect of the Uniform Computer Information Transactions Act (UCITA)
will be to give the force of a contract to a (possibly
non-contractual) shrinkwrap or clickwrap software licence. However
this Act is not in force in most States.</P>
</DIV>
<DIV ID="sdfootnote55">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote55sym" HREF="#sdfootnote55anc">55</A>McCullagh,
D. "Wired News: Mattel Ruling Confuses Hackers",
<A HREF="http://www.wired.com/news/business/0,1367,35258,00.html";>http://www.wired.com/news/business/0,1367,35258,00.html</A>.</P>
</DIV>
<DIV ID="sdfootnote56">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote56sym" HREF="#sdfootnote56anc">56</A>In
fact, it would arguably have been revoked automatically when the
copyright was transferred, unless the GPL licence had been signed by
the licensor: 71 USC 205(e). This is not the case in Australia:
Copyright Act 1968 (Cwlth) s.196(4).</P>
</DIV>
<DIV ID="sdfootnote57">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote57sym" HREF="#sdfootnote57anc">57</A>More
commonly, <I>nemo dat quod non habet</I><SPAN STYLE="font-style: normal">:
<I>Cundy v Lindsay</I> (1878) 3 AC 459.</SPAN></P>
</DIV>
<DIV ID="sdfootnote58">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote58sym" HREF="#sdfootnote58anc">58</A>See
McKusick, M. "20 Years of Berkeley Unix: From AT&T-Owned to
Freely Redistributable",
<A HREF="http://www.oreillynet.com/pub/a/network/2000/03/17/bsd.html?page=1";>http://www.oreillynet.com/pub/a/network/2000/03/17/bsd.html?page=1</A>.</P>
</DIV>
<DIV ID="sdfootnote59">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote59sym" HREF="#sdfootnote59anc">59</A>Furthermore,
although it may be possible for a class action to be instituted,
this is likely only to be feasible for the licensees who are
resident in the jurisdiction where the action is commenced.</P>
</DIV>
<DIV ID="sdfootnote60">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote60sym" HREF="#sdfootnote60anc">60</A>Clause
0.</P>
</DIV>
<DIV ID="sdfootnote61">
<P CLASS="sdfootnote"><I><A CLASS="sdfootnotesym" NAME="sdfootnote61sym" HREF="#sdfootnote61anc">61</A>British
Empire Films Pty Ltd v Oxford Theatres Pty Ltd</I><SPAN STYLE="font-style: normal">
[1943] VLR 163.</SPAN></P>
</DIV>
<DIV ID="sdfootnote62">
<P CLASS="sdfootnote"><I><A CLASS="sdfootnotesym" NAME="sdfootnote62sym" HREF="#sdfootnote62anc">62</A>Butler
v Fairclough</I><SPAN STYLE="font-style: normal"> (1917) 23 CLR 78.</SPAN></P>
</DIV>
<DIV ID="sdfootnote63">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote63sym" HREF="#sdfootnote63anc">63</A>(1996)
34 IPR 481.</P>
</DIV>
<DIV ID="sdfootnote64">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote64sym" HREF="#sdfootnote64anc">64</A>There
were in fact no express terms of the licence that dealt with the
copying of the program by a distributor, so the court was required
to imply terms into the licence, which it did on the same basis as
if the licence had been a contract.</P>
</DIV>
<DIV ID="sdfootnote65">
<P CLASS="sdfootnote"><I><A CLASS="sdfootnotesym" NAME="sdfootnote65sym" HREF="#sdfootnote65anc">65</A>Ibid</I><SPAN STYLE="font-style: normal">.
499.</SPAN></P>
</DIV>
<DIV ID="sdfootnote66">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote66sym" HREF="#sdfootnote66anc">66</A>For
contributors who are employed or are students, the FSF also provides
a template disclaimer of copyright for the employer or educational
institution to sign.</P>
</DIV>
<DIV ID="sdfootnote67">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote67sym" HREF="#sdfootnote67anc">67</A>GNU
Maintenance Instructions,
<A HREF="http://www.gnu.org/prep/maintain_7.html#IDX2";>http://www.gnu.org/prep/maintain_7.html#IDX2</A>.</P>
</DIV>
<DIV ID="sdfootnote68">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote68sym" HREF="#sdfootnote68anc">68</A>Copyright
Act 1968 (Cwlth) s.196(3), and in the United States 17 USC 201.</P>
</DIV>
<DIV ID="sdfootnote69">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote69sym" HREF="#sdfootnote69anc">69</A>In
other words, the original copyright owner retains the copyright in
joint ownership with Sun.</P>
</DIV>
<DIV ID="sdfootnote70">
<P CLASS="sdfootnote"><A CLASS="sdfootnotesym" NAME="sdfootnote70sym" HREF="#sdfootnote70anc">70</A><A HREF="http://www.openoffice.org/licenses/jca.pdf";>http://www.openoffice.org/licenses/jca.pdf</A>.</P>
</DIV>
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