That book isn't an example of a contract, unlike the crazy Disney tweet.
The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.
So this license granted the purchaser permission to use Disney IP in exchange for the purchase price of the book...how is that different from a contract?
The distinction between a contract and a license is a lot smaller than most people in software seem to think it is [1].
A license is different from a contract because there is a separate body of law for licenses and another for contracts, with different requirements.
A contract can involve a license, and a license can involve a contract, explicitly. But they are different things. You need a lawyer to explain precisely how they are different, and how they interact. (Many judges and many lawyers are not very clear on license law.)
But one important difference is that there is no need for mutual agreement or exchange of value, in license law. If you don't agree, you don't have the license. You start out bound by its restrictions, under the Law of the Land, and they are only relaxed by its owner choosing to relax them.
Not all licenses are contracts. Some are deeds instead.
("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.)
There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".
The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset nor a subset of contracts. There is, however, a bunch of cracked case law around licenses created by jurists confused about the topic.
> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.
I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.
And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.
This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).
> I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
Neither of those state that it is not a contract.
> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".
> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent
A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.
That’s interesting, though... does that mean that in your understanding of the scenario (IANAL, you might or may not be) the original buyer might have a shot at making that argument?
Yeah, so my thought when I bought it was to offer to sell it back to Disney for $25k or something. I could most likely get a pro-bono defense while Disney would pay a lot more than that in a lawsuit which I would most likely win. Most likely. I still haven't acted on it yet.
You won’t win. The marginal cost to Disney of suing you is close enough to $0 that it’s not worth mentioning. Further the likelihood of a lawyer representing you pro bono in an unwinnable nuisance suit is much lower than you imagine.
Disney is a money printing machine. All they have to do is make another "Marvelous" movie or a "Space Fights" movie (yes that's XKCD) and that will add some more billions to their coffers. They got enough money to be dragging you to courts for another century. No pro-bono lasts that long.
Please do ! This would make an interesting case to study and you would certainly become famous. I would not be as confident as you that you'd be likely to win though ...
