![handle is hein.journals/ifosslr12 and id is 1 raw text is: Open Source Interpretation
Open Source Interpretation
Eli Greenbauma
(a) Partner, Yigal Arnon & Co.
DOt 10.5033/iolts.vl2il.143
Abstract
This Article offers an alternative to the standard assumptions concerning
the interpretation of Free and Open Source Software licenses - that
such licenses should be interpreted as boilerplate agreements applied by
the licensing parties without having negotiation regarding the language
of the license. The Article considers some of the consequences of this
approach to license interpretation.
Keywords
Law; information technology; Free and Open Source Software
Should ordinary principles of contract interpretation apply to Free and Open Source Software
(FOSS) licenses? Courts and commentators2 have generally assumed that Free and Open Source
Software should be interpreted as classical contracts - and, as such, should be construed to reflect the
intentions of the parties to the licensing transaction.3 According to this approach, the interpretative
guidance of license stewards and industry associations may have limited effect on the understanding
of FOSS licenses, but such comments would have less significance that the intentions of the licensor
and licensee themselves.4 Moreover, according to this approach, common cannons of contractual
1 To the extent United States courts have had the opportunity to interpret FOSS licenses, they have generally not explained
their reasoning. See, e.g., Jacobsen v. Katzer, 535 F.3d 1373, 1381 (Fed. Cir. 2008) (interpreting the terms of the Artistic
License, without explanation of the underlying interpretative principles). Some United States courts have had the
opportunity to interpret Creative Commons licenses (which are not geared towards the licensing of software), and such
courts have generally assumed that they can property rely on traditional tools of contract interpretation. Drauglis v.
Kappa Map Group, LLC, 128 F. Supp. 3d 46, 53 (D.D.C. 2015). See also Great Minds v. Office Depot, Inc., 945 F.3d
1106 (9th Cir. 2019); Great Minds v. FedEx Office & Print Servs., 886 F.3d 91 (2d Cir. 2018).
2 See LAWRENCE ROSEN, OPEN SOURCE LICENSING SOFTWARE FREEDOM AND INTELLECTUAL PROPERTY LAW 120 (2004); HEATHER
MEEKER, OPEN SOURCE FOR BUSINESS 98 (2017) (stating that there is no reason to think that the rules of interpretation
applicable to the GPL would be different from those applied anywhere else in the law); Lothar Determann, Dangerous
Liaisons-Software Combinations as Derivative Works? Distribution, Installation, and Execution of Linked Programs under
Copyright Law, Commercial Licenses, and the GPL, 21 BERK. TECH. L.J. 1421, 1491 (2006) (asserting that, in interpreting
the GPL courts would likely apply contract interpretation rules and try to determine the intent of the copyright owner
who selected the GPL and the licensee who selected the program). But see Van Lindberg, OSS and FRAND,
Complementary Models for Innovation and Development, 20 COLUMB. SCIENCE & TECH. L.R. 251 (2019) (since licenses are
chosen and not negotiated, some typical canons of license interpretation may not apply in the open source context).
3 ROSEN, supra note 2 at 120 (asserting that [u]nder the law, only the common understanding of a licensor and his licensees
matters, as reflected in the written terms and conditions of the license agreement between them); Lindberg, supra note 2,
at 257 (using the Open Source Definition to illuminate the 'meeting of the minds' between licensor and licensee to the
extent it exists). Jason B. Wacha, Taking the Case: Is the GPL Enforceable?, 21 SANTA CLARA HIGH TECH. L.J. 451, 487
(2004). (asserting that even if the FSF's language is additive, in analyzing a contract, a U.S. court would look to the
intent of the parties); Determann, supra note 2, at 1491 (asserting that in a dispute about the GPL, courts would likely
apply contract interpretation rules and try to determine the intent of the copyright owner who selected the GPL and the
licensee who selected the program).
4 ROSEN at 120 (asserting that it is legally unnecessary to know what the drafter of a license - usually just an attorney with
no stake in the matter-meant to say); LINDBERG, supra note 2, at 257, n.18 (asserting that for the interpretation of open
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Journal of Open Law, Technology, & Society
Vol. 12, Issue 1](ViewImageLocal?handle=hein.journals/ifosslr12&div=1&collection=&method=preview&ext=.png&size=3)
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