In the previous section we discussed the different types of OSS licensing. Assuming that these licenses will be enforced by the licensor, or ultimately by the courts, there are two unique problems that may affect the licensor.
First, in each of the licenses described in the previous section the licensee may not even know who the licensees are. All of the licensees utilized the licensed code with an invitation to adopt it and use it, subject to the terms of the respective license. These open source and free software licenses do not require notification or other affirmative action to be taken by licensees that would notify the licensor of the fact that the licensee has entered into the contract. In addition, most of these licenses permit and even encourage the free sublicensing of the licensor’s work to other licenses, whose connection to the original licensee can become tenuous as the licensed work moves through multiple generations of licensing before ending up with a particular user. [1]
Second, some of these licenses require licensee to do affirmative action or conditions to access and use the licensed work. However, there are also many of them who do not require any prior conditions, such MIT, Apache or the permissive type.
Both of these problems are substantially addressed by the fact that use of the licensed work is contingent on accepting the terms and conditions of the license. Unlike other types of contract, open source and free software contracts impose very few, if any, affirmative conditions (such as the payment of royalties) on licensees, but rather impose restrictions only on the rights granted by the license. This is to save the enforceability of these licenses from challenges regarding the absence of mutual consent or consideration that may otherwise arise.[2]
Contractual obligations
For a contract to occur it requires two components: First is the consideration or mutual obligation; and second is the meeting of the minds. Once an offer has been made and accepted, an enforceable contract is created.
With open source licensing, even the most permissive or unrestrictive license impose at least a minimal obligation ensuring that there is in legal sense an exchange and acceptance of an offer or consideration which made it into a contract through the license. Failure to abide by it constitutes a breach. While most permissive licenses such as the MIT is not onerous, it is however real, and failure to comply also constitutes a breach. One example if an ordinary user came across with a piece of code and beyond his knowledge subject to an MIT license. The user use, incorporate and distribute the program for profit or not. At no point has the user taken any affirmative, symbolic action that would indicate his consent to the terms of the license. However, it is assumed that his voluntary use and distribution of the program is comparable to an act of signing the contract and his non-compliance of the terms of the license constitutes a breach of contract.
Self-enforcing nature of open source and free software licenses
Even in the absence of affirmative act of consent, open source and free software licenses are self-enforcing. This is because open source and free software licenses do not impose affirmative obligations on licenses but rather impose restrictions on the rights granted under the license: such restrictions can be relatively straightforward. One example is the GPL license which provides that installing, using, or even modifying the GPL-licensed software implicates no terms of that license. Any user is completely free to undertake any actions relating to the licensed material. There no requirement for royalties or conditions in exchange for use except if the user intends to distribute the product. It is only at this point that the question of enforcement arises. And it is at this point that the unique strength of these licenses becomes apparent.
This feature makes open source and free software licenses remarkably easy to enforce. A licensor can simply tell infringers that infringement vacate their continued rights to the licensed code. As most infringers are aware of the substantial civil and criminal penalties associated with copyright infringement, and desire the rights granted by the license, they will make their behavior conform to the demands of the license. For those infringers unwilling to conform to the terms of the licenses, even after being put on notice of the license, and who continue to infringe (typically by redistributing the licensed work under an incompatible license, such as a proprietary license, the licensor can directly contact the customer of the illegally licensed software. The original licensor can inform those customers that the same (or substantially similar software) is available under the terms of the original license, which are almost certainly more favorable to that customer. In addition, because the customer is aware of the difficulties and expense associated with relying on software licensed under what is, at best, a highly questionable license, it is probably sufficient to convince such customers to abandon the use of the work distributed in violation of the license. While this involves some degree of administrative and legal sophistication on the part of the licensor, this is generally not a great burden. The Free Software Foundation has policed the GPL License in exactly this fashion for many years with consistent success.[3]
References:
[1] St. Laurent, Andrew M., “Understanding Open Source and Free Software,” First ed., Beijing; Sebastopol, California, O’Reilly, 2004).Web.
[2] Ibid.
[3] Ibid.