Open Source, Free Software and Contractual Issues

“Free software” is an increasingly used form to license computer programs, which on the one hand gives users the rights to use, modify and redistribute the program; and, on the other, forces any person redistributing an original or modified version of the program to license it with the same rights. Such a forced obligation is introduced through the so called “copyleft clause” and, basically, uses Copyright in a creative way to achieve freedom instead of control. This paper discusses the “free software” foundations and contractual issues. The discussion is structured in two main parts and Conclusion. In Part II, the emergence of “free software” and its implications in different fields will be exposed. I will seek to explain how the “copyleft clause” affects the ways in which software is developed and distributed. Moreover, I will explain the common points and differences between “free software” and “open source software”. In Part III, the contractual issues raised by the peculiarity of the “copyleft clause” will be addressed. I will argue that the license agreement which contains the “copyleft clause” is not a mere copyright non-contractual license, but a contract. This fact triggers a number of contract related questions, which I will seek to resolve from the U.S. perspective. In particular, I will address the concerns about lack of consideration; validity of clickwrap and shrinkwrap licenses; possible consequences of lack of privity between licensor and licensee; the enforceability of the warranty disclaimer included in most copyleft licenses; and the relation between Copyright and contractual provisions. Finally, the paper will end summarizing the main conclusions drawn in the two main parts mentioned above