unravelling the myth around open source licences - IViR

4.2 Parties to the agreement
A more complex issue concerns the identification of the parties to an open source licence.
Whereas the identification of the licensee poses no great difficulty – it is the person who receives a
copy of the software – that of the licensor can be problematic, mainly because the text of the licence
does not always contain a clear indication of the name(s) and address(es) of the physical or legal
person(s) granting the licence. The lack of proper identification of the licensor could have practical
consequences at least in two situations: first, in relation to the enforcement of the purely contractual
obligations deriving from the licence; and second, in relation to the proper functioning of the sharealike
clause of the GPL.
In the first case, we believe that a sharp distinction should be made between the copyright
owner(s) on the software and the licensor(s) of the software. As explained more elaborately in
section 5.1 below, the identity of the copyright owner is a factual question, which must be decided
on a case-by-case basis and which must take into account subsequent transfers of rights. Since we
generally regard open source licence agreements as contracts, the identity of the licensor must be
established according to the principle laid down in the Haviltex case, i.e., taking the respective
expectations of the parties into account. In principle, the licensor and the copyright owner can, but
need not necessarily, be the same person for the licence to be valid. Moreover, even if the licence
must be considered as a whole, this does not take away the fact that a number of obligations
contained in a typical open source licence may be regarded as the exercise of the prerogatives flowing
from the copyright protection, but the remaining obligations derive exclusively from the contractual
agreement itself. For example, the GPL imposes a number of contractual obligations on the licensee
(such as the obligation to disclose the source code, to distribute modifications of the code under the
GPL, to put a copyright notice with the names of all authors and the prohibition to ask for royalties),
which have nothing to do with copyright protection. It is not - and will never be - an infringement
of copyright law to do any of these acts. The only way that a licensor can enforce these specific
obligations is on the basis of the GPL, not on the basis of the copyright act. In order to facilitate the
future enforcement of the licence, it would therefore be important not only to assertain who the
copyright owner is, but also who the licensor is.
Second, the lack of proper identification of the licensor can make the application of the sharealike
clause more difficult. According to article 6 of the GPL, ‘each time you [a programmer]
redistribute[s] the Program (or any work based on the Program), the recipient automatically receives
a licence from the original licensor (…)’. If the contact details of the licensor(s) are not mentioned in
the licence, how can a subsequent user ascertain with whom he is contractually bound? Moreover,
given the layered structure of open source production, it is unclear whether the licensee obtains a
licence only from the very last programmer in the chain or also from every programmer involved in
the development process of the particular version of that software. Does the GPL licence only bind
the last licensee with the original licensor or does it also bind all other developers in the chain? For
the open source ideology to reach its objective, one would think that the licensee should be
contractually bound to all developers in the chain. 146 Again, without proper identification of the
licensors along every step of the development process, how can a subsequent user ascertain with
whom he is contractually bound? The Mozilla Public Licence is perhaps the most evident from the
three types of licences examined here. Article 2 of the Mozilla licence provides for the grant of a
licence to the licensee from the initial developer, as well as from each contributor.
In practice, a vast amount of open source software is made available via the popular open
source software catalogues, SourceForge, Freshmeat and the Free Software Directory. For each
146 De Preter and Dekeyser 2004, p. 216.
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