[DUG] Open source licences

[Paul Eggleton]

Grant Brown wrote on Wednesday, 7 December 2005 3:56 p.m.: 
> I have kept an eye on this thread with some interest, and whilst I am
> not a lawyer I don't believe that open source licenses of any nature
> would stand up in court.

Before we go on, I am not a lawyer either. However I have looked into
this in some detail as I have released some of my own software under the
GPL.

> Nor do I think much of click through license agreements. You need a
> written and signed contract not an action to form the basis of an
> agreement. 

There is a difference between EULAs and most open-source licences. The
GPL, for example, is not a contract, and governs only distribution, not
use. The following article has some quotes from Eben Moglen of the FSF
which clarify this distinction:

http://lwn.net/Articles/61292/

> Being open source the code in question by default is placed in a
> public forum, which I would have thought negates the license.

For a piece of software under the GPL, the GPL is the only thing that
gives you permission to redistribute the software. If the GPL is found
not to be valid or not to apply for some reason, the software falls
under copyright law which gives you no redistribution rights at all.
 
> The other interesting point is that if you are going to place code in
> open source, then why place any kind of agreement on it at all, kind
> of defeats the purpose.

Not at all. If you want to keep your software open, then you would be
wise to consider a licence which attempts to enforce that. If you don't
care then you can release it as public domain, or use the BSD or ZLib
licence (or similar).
 
> Has any open source license ever been tested in court, it would be
> interesting to read the transcript.

I believe so - from memory I think the GPL has been tested in German
courts. Check with google to confirm though. Of course this would set no
precedent in New Zealand (or Australian) courts.

> My personal view is that if something is provided as open source then
> its open source, not open source with a huge "BUT" attached.

It is the author's right to determine how their code is redistributed,
and I think you will find that the law more or less falls on the
author's side.

Cheers,
Paul