unravelling the myth around open source licences - IViR

from conduct. With respect to contracts, article 6:217 CC provides that the multilateral juridical act
is formed by the exchange of an offer and its acceptance, which can take place in any form, unless
the parties have agreed otherwise. This implies that, in principle, offer and acceptance can also be
exchanged via electronic means. 153 The fact that juridical act is done for free may play a role in
deciding whether an offer has been accepted or not. Commentators would seem to agree that, in the
case of gratuitous juridical acts (“rechtshandelingen om niet”), acceptance is presumed to have taken
place more rapidly. 154
Do offer and acceptance differ if the transaction takes place in the digital networked
environment? 155 In order to tackle the persisting uncertainty around the formation of electronic
contracts, the European legislator adopted the directive on electronic commerce in 2000. 156 The
directive’s main objective is to ensure that the legal system of each Member State allows contracts to
be validly concluded by electronic means. The scope of the directive is very broad, since it applies to
all contracts concluded via electronic means, irrespective of whether a consumer is involved in the
transaction or not. To this end, all ‘information society services’ (ISS) have an obligation to provide
certain information prior to the conclusion of the contract and to make the contract terms and
general conditions available to the recipient in a way that allows him to store and reproduce them. 157
The directive on electronic commerce defines the ‘information society services’ as services within the
meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC, and more
specifically as ‘any service normally provided for remuneration, at a distance, by electronic means and
at the individual request of a recipient of services’. Considering the formulation of this definition,
one could wonder whether the on-line distribution of free open source software qualifies as an ISS.
In the Explanatory Memorandum to the Dutch implementation act, 158 the Minister of Justice
declared that the expression should be understood in broad terms and should not be limited to
services where a contract must be concluded. The directive also covers activities for which the buyer
pays nothing, such as the offer of on-line information or the making available of a search engine, if
these activities are generally offered against the payment of a price or if they otherwise possess a
certain economic value. The determining factor in deciding whether a service falls under the
definition is not so much whether remuneration is paid for the service, but rather whether it
constitutes an economic activity. In our opinion, the offer – albeit free of charge – by the vast
majority of open source software distributors on the Internet definitely constitutes an economic
activity that should be covered by the definition of ‘information society service’. Our judgement
would differ, of course, if the open source software were distributed strictly by a private individual,
such as via a student’s website.
As a result of the implementation of the electronic commerce directive into Dutch law, new
article 3:15d CC requires that anyone who provides an ‘information society service’ must make
certain information accessible to the recipients of the service in an easy, direct and permanent
manner. Particularly relevant in the context of the distribution of open source software are
subparagraphs (a) and (b) of article 3:15d CC which require anyone who provides an information
society service to supply his name and geographic address, as well as his electronic mail address, in
order to allow him to be contracted rapidly and communicated with in a direct and effective manner.
153 Van Esch 2004, p. 157.
154 Bloembergen 1998, p. 71; Spindler and Wiebe 2003, p. 874.
155 Stuurman, Westerdijk, and Sander 2000, p. 60.
156 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information
Society Services, in Particular Electronic Commerce, in the Internal Market (Directive on electronic commerce), 17 July 2000,
O.J.E.C. L 178/1, art. 9 and ff. The directive has been transposed in Dutch law by the Aanpassingswet richtlijn inzake
elektronische handel, Stb. 2004, No. 210.
157 Stuurman, Westerdijk, and Sander 2000, p. 60.
158 Tweede Kamer, 2001-2002, 28 197, nr. 3, p. 12.
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