Open source, closed source, and the value of code

[Matt Maier]

On Thu, Mar 3, 2016 at 10:30 AM, Robert Mann <rman at free.fr> wrote:

> << I believe any media or other content (whether separate files or not)
> distributed with the application and/or required to make it function fully
> would need to be licensed in a GPL compatible license.>>
>
> Hi Monte, I believe (!)  that this belief is kind of a key issue in
> attempting to identify the scope of GPL for livecode stacks and their
> content.
>
> I invite all of you (all) to , put on the legal hat for a while and walk
> into the following story :
>
> GPL is a very special kind of automatic contract that is attached to a
> piece
> of work and which describes what the receiver of that piece of work can or
> not do with it.
>
> As such it is a very special contract in the world of contracts because it
> does not require the agreement of the receiver, which is "implied" by the
> act of receiving. So it is not the strongest type of contract.
>

To add to the discussion, for what it's worth, there are good reasons that
proponents of copyleft (like the FSF who wrote the GPL) insist that it's
enforced by copyright law, not contract law. While legal systems do differ
in that some don't distinguish between licenses and contracts, the
distinction is important for copyleft.

In general, a contract has to be bargained, and consideration exchanged,
before it exists, and it only exists between the two parties. Then, if a
contract if violated, you generally can only sue to be made whole, so you
have to be able to show damages. Copyright, on the other hand, exists
instantly and forever, is implicitly accepted by everyone no matter how far
removed from the licensor they end up, and if it's violated you can have
the court take action without showing damages. Additionally, copyright law
is much more homogeneous globally.

So, for FOSS, copyright is a far more attractive legal structure. In the US
court cases where copyleft was upheld judges even cited in their written
opinion that FOSS would be effectively impossible under contract law.