[odf-discuss] ODF adoption considered in Oregon

[marbux]

On 3/29/07, Daniel Carrera <daniel.carrera at zmsl.com> wrote:
> On Thu, 2007-29-03 at 10:24 +0200, Thomas Zander wrote:
> As the GPL does not involve an exchange of promises and does not state
> benefits for both parties, it is not a contract. It is a license. A
> license is a permission to do something under certain conditions.
>

Intellectual property law was derived from the law governing real
property, which is ancient. In property law, when you give someone
permission to enter your property, that is a license. Black Law
Dictionary's definition begins with "The permission by competent
authority to do an act which, without such permission, would be
illegal, a trespass, or a tort."

Where it gets tricky is that a license at least implies a contract.
I.e., "If you grant me permission to enter your property I will do so
and go fishing in the stream through your property." The response
might be, "I give you permission to do that, but only to fish." So
there's a promise on each side, one to forbear from prosecuting the
crime, trespass, or tort, and on the other side a promise not to
exceed the scope of the permission granted, e.g., to cut down a few
trees for firewood while you are on the property.

As a result, you get a recurring debate whether a license is a
contract.   Personally, I think the better view is that the license
and the contract are conceptually separate, since one is a property
law concept and the other is a contract law concept and the permission
is the subject of the contract rather than the contract itself.

But I also think in a lot of ways it's like debating the number of
angels that can dance on the head of a pin. Push comes to shove,
lawyers have no hesitation with arguing contract interpretation
principles and precedents in a case involving a license. At the very
least, there's a huge overlap with differences rarely encountered in
the law.

Best regards,

Marbux