Re: Shut it you tedious old windbag
Something more recent here:
https://atrilife.wordpress.com/2011/09/07/license-or-contract-the-form-of-the-open-source-license/
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Some believe that the GPL is a type of contract known as a browsewrap agreement. At lease one court has taken this view, noting that some terms may be viewed as covenants under a contract, not license conditions, for example by number of users. See Netbula LLC v. Storage Technology Corp., 2008 WL 228036 (N.D. Cal., 2008). Otherwise, it could also be a unilateral contract without express acceptance, until the GPL code is modified or distributed, where the agreement then becomes a bilateral contract.
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As of 2011, Massachussetts treats software licenses as contracts under the UCC:
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Until specific legislation has passed, Massachusetts courts will treat software licenses as contracts subject to the UCC. See I. Lan Systems v. Netscout Service Level Corp 183 F. Supp. 2d 328, 331 (D. Mass., 2002).
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interestingly enough, Massachussetts is the US State where the Free Software Foundation is headquartered.
It's a tricky issue - at least in the US, because in the US it is possible to construct a de facto Contract without explicitly stating that it is, in fact, a Contract. Also, it is not true that a breach of contract - if the GPL is indeed a contract - would not create a damage claim from the licensor's - the FSF - point of view, as that article states. Many jurisdictions in the US - for example NY - expressly allow for punitive damages claims in case of breach of contract. The fact that the GPL does not explicitly state what happens in case of breach would not moot a punitive damages claim in case of breach, at least not in NY, and probably many other US jurisdictions.
Biting the hand that feeds IT
