 be the human mic stand so that's what that's what we only have one microphone so that's what's happening here just wanted to explain so I'm Pamela Chastek I am an attorney from the United States I'm Andrew Katz I'm a lawyer from the UK and I advise a lot of free and open source software companies hi my name is Mikaela McDonald and I teach at University in London Queen Mary and what jurisdictions do you oh yes and I'll be looking at civil law traditions so I propose this talk because you know we kind of it's kind of this always the to me it's the elephant in the room is this is a licensor a licensor contract or these open source licenses licensor contracts and it occurred to finally occurred to me that the answer is probably different under different legal systems and so I thought well why don't we figure out the answer this question and I'm happy to say that in putting together this panel and working with these panelists it turns out the answers really different and different jurisdictions so I'm glad we did this little exercise so I'm going to start with it I'm going to start from a US perspective and then we'll do the UK perspective and then we'll do I'm sorry the English English perspective and then and then we'll do the EU perspective so from the US perspective we have there's this a license is not it's not a thing it's a grant of permission to use a copyrighted material and it can either be express written or oral or it can be implied in conduct it is and all it is a license in the United States is simply a defense to an infringement so if you are accused of infringement you can say I have a license and as long as your behavior is within the scope of whatever that whatever that expression is whether it be written or whether it be oral or whether it be by conduct as long as you can show your conduct fell within that then you have a license defense and you're not an infringer so in a contract is a different concept altogether and a contract is an agreement between two people it's it requires an offer and acceptance and mutual consideration meaning that both parties gain a benefit from this relationship now it's it is has been established in the US there's a little bit of jurisprudence in the US it has been established that for open source licenses this consideration for the on the part of the offer or on the part of the of the license or of the software the benefits include generating market share for their programs increasing their national or international reputation or improving a product so so from the license or perspective in the US that is consideration that is the benefit for you granting this license so what we have in the United States is you can it be so this to me would be and I'm using the I'm using the word bear license because it is a term that's used sometimes it's not really a term used in the United States or understood in the United States but I would say that a bear license is simply an agreement for a license that has nothing else and then you but you can typically a license is going to have a lot of different things going on so they obviously if you've gathered my analogy here the yellow pepper is the copyright license but often the contract will have many other components to an agreement will have many other components and in the US what this turns on the question then becomes when you have this written document that has a lot of obligations in it which ones of those are conditions of the license meaning if you have not met those conditions you don't have the copyright license or which of them are our other requirements within the agreement but but not a condition on the license so for so for example so an example of a condition is there the courts will look at words and they'll look at words and here you can see you may consider this is from the GPL you may convey a work provided that you also meet all of these conditions well that's pretty clearly stated what it is that's going to be the conditions for the copyright license an example of of what what might be a condition on a copyright license would be you may not create a derivative work contrasted with a covenant that is not part which is maybe in the same agreement but not part of not a condition on the license would be you're not allowed to disparage the licensor so that has nothing to do so that may have nothing to do with the copyright grant and so for if you so again back to if I fail to meet the conditions of my license I'm a copyright infringer but if I simply fail to meet a covenant if I disparage that website owner that may not affect the copyright license and is apart from the copyright license in this comprehensive document that may be more about more than just a copyright license so in looking specifically at some licenses I looked for that the shortest license I could find the one that I thought might be most what I could characterize as a bear license that really is just about copyright and nothing else and I came up with and the shortest one I could find is the fair license which is this which just says clearly permission to use the work and then the disclaimer the works are without warranty and the next license I thought about was the BSD 3 clause which I'm not going to which you can't read from that slide the slides are all on the website by the way and so in under US law when I look at it I think okay this concept of a bear license is the fair license a bear license is it just about a copyright license and nothing else I have question marks maybe that extra warranty language that extra disclaimer language maybe that isn't part of the copyright license but this is the only one that I would say might fit in that category sort of bear license and not a contract the BSD that the aspect of the BSD that I looked at and said okay well this is this is back to my concept of conditions or covenants the BSD was let me find the language the BSD huh yeah you won't be able to read it but yes there we go actually thank you because it was easier than finding my piece of paper so number three now that the name of the copyright holder the nor the name of its contributors may be used to endorse or promote products derived from this software that had really has nothing to do with the copyright grant so I looked at that thought that's probably a contractual condition not a covenant I'm sorry a condition it's not a condition of the of the license grant that is a contractual covenant and this then is agreement a contract between two parties so under US law I say bear license maybe on the fair license but basically they're all contracts we really I think we're gonna have to save questions to the end because we have three people at very short time okay brilliant thank you very I'm gonna come over here so I can press the button so thanks Pam I like being a human like Sam okay that works yeah so I'm talking specifically about English law which covers the law of England and Wales and I'm assured by one of my Northern Irish colleagues that the law is going to be interpreted the same in Northern Ireland as it is in England and Wales not Scotland so we're not covering Scotland which is much more of a civil law jurisdiction so just really look at the different sorts of contracts that we have a proprietary software license is typically a bilateral contract so that means that there are rights and obligations on both sides it means that it's the sort of complex contract the pan was talking about about earlier and you know I don't really propose to analyze that much much further but free and open source software contracts tend to fall into a different category and if we look at what a bear license is from an English law perspective it's basically a promise not to enforce rights that you may have such as copyright but the problem is that if it's not enshrined in a contract that keeps it active it means that the person making the promise is effectively able to withdraw it at any time which makes it fairly useless for anyone relying on it and the courts understood that this was a fairly unfair scenario so they came up with the concept of a stop all that means that if somebody grants a license and then you rely on that license then they're no longer allowed to revoke it it's slightly more complicated that than that but that that's basically that basically the situation now there is a halfway house here there is this concept of a unilateral contract so the sort of contract I mentioned before bilateral contract is one where there are promises mutual promises given on both sides a unilateral contract is a contract where a promise is only given on one side but the other party acts in such a way as to make it binding and the classic example is this case with a wonderful name of Carl Lille and the Carbolic Smoke Ball Company and basically the promise was that they advertised that they would pay 100 pounds to anyone who used their product and if they contracted the flu later and this is very very widely advertised so it's Victorian case that won't surprise anyone particularly so the Carbolic Smoke Ball Company advertised that anyone who did get flu could get in touch with them and they would be paid this hundred pounds and this was this was backed up by they deposited some of money in a bank and they're obviously very very serious about this now I haven't researched what the Carbolic Smoke Ball is because I think it probably be disappointed with the reality I always have in mind that it's like some sort of toxic smoke grenade which is full of all sorts of noxious agents possibly radium this sort of thing Mrs. Carl Lille was using this thing on a daily basis and on the upside these noxious agents failed to kill her on the downside the noxious agents failed to kill the influenza virus and she caught influenza and probably even more unfortunately they also failed to kill her husband who happened to be a trial lawyer so once she recovered from her influenza she started a court case against the Carbolic Smoke Ball Company and she won her hundred pounds which was a lot of money in those days this was before the Brexit vote so the court case involved quite a lot of argument around offering acceptance and communication and acceptance and offering so on and so on and so forth but the upshot of it was that the court wanted to construct a mechanism by which Mrs. Carl Lille had a means of effectively suing the Smoke Ball Company to get the hundred pounds out of them and this is basically why they invented this idea of unilateral contract so free software license is different so if Mrs. Carl Lille had been using software under the GPL there are no circumstances in which she actually needs an enforceable right against the copyright owner the only thing that could happen is that if she happens to be using the software within the scope of the GPL and the copyright owner tries to sue her for doing that for copyright infringement then she can put up a shield and say no I'm complying with these conditions go away you can't do this so there aren't any circumstances in which she's going to initiate a claim now it's also worth bearing in mind that if Mrs. going back to the Smoke Ball example of Mrs. Carl Lille used her Smoke Ball incorrectly there's no way that the Smoke Ball Company would have any claim against her and for them it would just be a shield against if she tried to claim the hundred pounds they could say no you're not allowed the hundred pounds because you didn't use the Smoke Ball every day as directed so there's no need for contract there's no need for contract in the GPL example so the fundamental question is is it actually necessary to imply a contract and the answer to that is no and this is where I rely on an English case called Robin Ray and Classic FM and I won't go into the into the facts in any depth there but the courts came to the conclusion that if it's going to be implying terms into contracts it can only imply those terms to the extent that they're necessary and no more so my argument is that surely that applies to contracts themselves if you can obtain the full legal effect required without implying a contract at all if the concept of bare license is sufficient to enable you to do that then why do you need to imply a contract at all so really looking at the grid again I mean I sort of now I'm actually prepared to be persuaded more slightly by Tam's argument on the BSD but I still think my argument still holds that each of those licenses can be interpreted in such a way that's entirely consistent with the concept of a bare license and there's no necessity to imply a contract there there are some question marks around GPL I think there should only be one question mark I got a bit overexcited and put three in and this is for the really sort of non legal idea that there is obviously wording inside GPL that actually says there's no need to accept this license etc it talks about acceptance but it's almost the fact that it's it's ejecting so much that acceptance isn't required that the court is bound to be awkward and say well actually that means it probably is but some you know that's just reference to the idiocy of judges really so that's it for English law now on to other jurisdictions should pin that on or should I hold it no it's fine is that better yeah okay right so just to go also focusing on the main differences between US English and the civil law tradition and I'll be talking about civil law tradition in general looking at EU obviously there are multitude of different legal systems and there is no scope to go into all of them in details I'm just focusing on some general legal principles and basically the main difference is that software licenses proprietary or FOSS would be interpreted as contracts there is no such an independent concept of of their license or of a specific legal category that would apply to open source licenses the license itself therefore needs to meet all the relevant contractual legal requirements we would be looking at offer and acceptance the main difference between common and civil law principles is that in civil law the focus is on the parties obligations rather than on the parties promises like it is in common law that is why you would have the option of both unilateral and bilateral contracts where your unilateral will would create obligations that would be enforceable so again the idea of donation or gift creating an enforceable contract but in this specific context we would look at whether all the requirements are there the license again would be seen as an agreement whether licensor grants the licensee permission to perform certain acts that goes to beyond the copyright and when sort of looking at the different licenses whether there is a concept of bare license whether it is a contract again the answer is it is a contract there are a number of cases especially in Germany that sort of tested the validity and enforceability of clauses under the GPL and the court has confirmed in both cases one was the for example the belt versus sitecom Deutschland GmbH and the other one also involved and dealing Germany where the court has confirmed that these clauses are enforceable and enforceable under copyright and are valid in terms of again the oh does some slides missing I didn't I thought there were more of the grits you know comparing we'll do those next oh right yeah oh okay we can go we can go there yeah we can go there if you're ready to talk about them so so we also there are some additional slides that we won't have time to go through individually oh sorry yeah so there are some individual slides at the disclaimer you know we could we could be wrong because we this is just individual opinions of individual lawyers but just some very quick slides and just jump in if you want to say something so so just we have this sort of taxonomy of you know bare licensee unilateral contract bilateral contract some basic facts about each of those under the legal system so you can see under the EU there is no such thing as a bare license we are they are these revocable or not uh is one of the slides as I said these are on the website so you're welcome to pull these slides down um which concept in particular were you did you want to um I just want to say that obviously the difference but yes um then the difference in the interpretation would lead to different legal effects so as it is a contract there would have to be certain elements present you would be looking at whether uh there was an offer whether there was an acceptance again civil law does not hang on to the concept of consideration so that is not relevant but requires uh other formalities whether the license for oh sorry the contract was agreed for legal purpose whether the party was capable of entering into contract and so forth um and uh you would be looking at whether for example in the licensing chain all these formalities have been met whether it is possible sometimes to identify all relevant parties in the licensing chain and therefore there has been a valid contract concluded so that would be the difference between looking at um the license agreement from the perspectives of bare license or a contract perspective of common law or civil law as it to the legal effects that the contract would have yes so just some summary slides here so we had so a third party beneficiary is can a user enforce this contract particularly for the gpl so the person who has not received the source code who should have received the source code is that person able to make a claim that they're entitled to it does this contract allow that that's one concept that's uh very interesting um specific performance means can you get the the the licensee who is not performed can you oblige them to perform or instead can you simply force them to pay damages for their non-compliance what remedy is available specific performance being as it sounds performance versus just a payment of damages and the uh legal costs whether or not the um the which party may be whether a party may be entitled to recover their legal costs also a contract concept and um excluding liability whether it's legally feasible impossible sometimes one is not allowed to exclude liability and so these are so again sorry that we don't have time to go through all of these concepts but they are uh they are there for you to look at and we have I think four minutes for questions first hand yeah yeah so um I'll get so the question was can I give a walkthrough on why I believe that the third paragraph of the BSD is a covenant and not a condition so that's a very narrow so it's a narrow reading so part of it is sort of the structure of the license it doesn't use the sort of magic language the second is that there is some law in the United States that says that conditions have to apply specifically to the copyright grant so um not to use a name and advertising has nothing to do with copyright whatsoever so some courts may interpret that and say therefore it's a condition not a it's therefore a covenant not a condition second question yep um yes that's why I picked the three um so again to the extent that bear license so again this is oh sorry the question is so the difference between the BSD two clause and the three clause is exactly that paragraph that I that I cite to which is why I use the three clauses as an example and the question is is the BSD two clause of bear license again back to that's really not a concept under U.S. law that you know so so is that you know are all of those conditions of the copyright grant possibly you also have the disclaimer of warranty which may affect it too I think most courts would just look at it and say it's a contract and and you know the fairly the fair the fair license was the only one that I could kind of look at and say that's really nothing there but the copyright but discussion of the copyright grant another question uh Jelaine yeah so I so so let me let me clear so the question is isn't it both and the answer is yes it's always both so to the extent that to the extent that a contract contains a copyright license then it is both now the difference is if what has had if I've breached my license so remember it's a defense so that if I don't meet the conditions for the defense to say I'm not an infringer I am an infringer and I and therefore the licensor may be entitled to copyright damages um if the if the breach of the license if the breach of the agreement is unrelated to the copyright license I may not be in breach of the license I may still have the copyright defense but my offense is something else related to the contract say for example I disparaged you then I'm entitled to my contract remedy for um disparagement so you can recover both types of remedies under the agreement you just can't have duplicative recovery um let me see let me get I'm going to do this question here yes yes now obviously he's also got his language in it which tries to make it very much clearer than just a bare license yeah um is it possible that you might be able to so right okay to summarize the question um so as far as the GPL is concerned um then uh its stated intention is to secure rights fees of the software um and the reality is that's contained in preamble so I think we'd agree that's some non contractual part so the question is would the courts interpret that purposefully um to uh to to try to um create a situation where um licensees are able to enforce so um any recipient of the software for example um could claim um against um somebody upstream who wasn't providing the source code um for example to do that um my personal um view is that's difficult to do um I mean I think it's an interesting argument part of the problem is that there's a number of different ways of complying um in order to get specific performance the court is going to have to choose you know what mode of compliance is the appropriate one um and um I don't think any court is ever going to want to do that um so the courts are very very uncomfortable about um about applying the specific performance anyway and if you're going to look at a purposive approach which is something that um is fairly alien to English courts anyway it's much more of a civil law concept um then you would bring in the whole of the concept of the you know free software foundation's view that it's only the copyright holders that should be able to um enforce rather than the uh rather than the recipients of the software um I think it'd be a slightly sort of scary concept I think if the recipients were able to enforce but there's a possibility that you know under German law I understand it was a possibility that that might happen in Germany but it's less likely to happen in England I think I think Jim's Jim had his hand up or do you want to cede your question no I want to hear Jim's question yeah I'm trying to I'm trying to make sure I understand it so you're saying someone hasn't complied with the license yeah that the license is revoked that's you know that's a really fascinating question that we actually discussed at dinner last night and and I will and I will command you to um what was the case I was just reading oh artifact software which actually does have a discussion on the automatic this is a sort of thrust is the automatic termination versus termination versus I don't know if that's but that um I would so if if we're just putting so we're just talking about the conditions to the copyright license we're not talking about the contract we're just talking about the license I'm just going to stick to the license so um so I I do think I do think that um if you I do think that if if you are meeting the condition to me I look at it and say am I meeting the conditions of the license do I have the defense now it doesn't say yesterday was I meeting them it is at the time I am accused do I have a defense and am I in compliance with those conditions and that's that to me seems like yes or no so I can come into I could have been out of compliance but I wasn't accused of infringement at that point in time so it was a moot point it only matters when I'm accused of infringement at that point in time am I in compliance or not I don't know if that has that answered your question I put a fine point on are you want to the license has terminated um that's yeah so the question is can you say that the license is revoked due to this um non-compliance that's a question of state law which will vary from state law from from state to state what are the opportunities what are the what are the what are the situations under which one can terminate an agreement so yeah