unravelling the myth around open source licences - IViR

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the other side. According to the European directive on unfair terms in consumer contracts, 162 a term must always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. With the conviction that purchasers of goods and services need to be protected against the possible abuse of power by the seller, in particular against one-sided standard contracts and the unfair exclusion of essential rights in contracts, the European and national legislators have subjected the use of standard contract terms to a number of formal and material requirements. As we shall see in the following subsection, even if a software user has manifested his intention to be bound by the terms of the licence, this licence could still be annulled if the legal requirements relating to the formation of the contract were not met or if the terms are deemed unfair. However, as a rule, the assessment of the unfair nature of the terms relates neither to the definition of the main subject matter{ XE "Unfair terms:Main subject matter of contract" } of the contract nor to the adequacy of the price and remuneration for the goods and services rendered insofar as these terms are in plain intelligible language. This rule is expressly laid down in article 4(2) of the European directive on unfair terms in consumer{ XE "Unfair terms:European Directive" } contracts and article 6:231a of the Dutch Civil Code{ XE "Standard form contracts" }. This exclusion is generally based on the view that subjecting the terms regarding price and other essential aspects of a contract to the ‘unreasonably onerous’ test would have the undesired effect of introducing the iustum pretium doctrine{ XE "Iustum pretium doctrine" } into positive law. This would, in turn, unduly threaten the parties’ contractual autonomy regarding the determination of price. Moreover, without this exception, the judge would be forced to pronounce himself on the equivalence of, on the one hand, the price paid under the contract with, on the other hand, the counter-performance in the delivery of goods or performance of services. Be that as it may, neither the Directive nor the Dutch Civil Code gives any indication of what must be considered the ‘main subject matter{ XE "Unfair terms:Main subject matter of contract" } of a contract’. On the one hand, standard form contracts usually contain clauses that either deviate from the default rules of contract law or that complete these rules. An example of the first type of clause would be an exoneration of liability clause, whereas an example of the second would be a price-increase stipulation. 163 On the other hand, standard form contracts{ XE "Standard form contracts" } also contain terms that are essential for the existence of the contract itself, in the sense that they are of such substantial significance that without them the contract would not have been formed or that there would be no proper manifestation of intention. It is an established principle of jurisprudence that the exception laid down in article 6:231a CC regarding the core stipulation of a standard form contract must be interpreted as restrictively as possible. 164 It is irrelevant for the determination of the main subject matter of the contract whether the stipulation governs an important aspect of the contract for one or both parties. Moreover, the content of the core stipulation must be determined on the basis of objective criteria; the parties have in principle no authority to qualify a clause of the contract as a core stipulation, with the result that this clause escapes judicial review. 165 In other words, the core stipulation of an agreement relates strictly to the essence of the performance under the contract. 166 Such essential terms are thus excluded from the definition of a ‘general condition’ in a non-negotiated contract, thereby escaping judicial review 162 Directive on Unfair Terms in Consumer Contracts, 93/13/EEC, of 5 April 1993, O.J. L 95/29. 163 Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht, Verbintenissenrecht, II. Algemene leer der overeenkomsten, § 348. 164 HR 21 February 2003, NJ 2004/567; Gerechtshof ‘s Gravenhage, 22 March 2005, 03/1463, LJN: AT1762, § 33. 165 HR 19 September 1998, NJ 1998/6. 166 Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht, Verbintenissenrecht, II. Algemene leer der overeenkomsten, § 348. 44
under the ‘unreasonably onerous’ test of article 6:233 CC. Essential terms in a contract will therefore be binding upon the parties unless, however, given all relevant circumstances, their enforcement{ XE "Enforcement:of contract" } would be unacceptable according to the criterion of reasonableness and equity as laid down in article 6:248 CC. 167 What is the core stipulation of the GPL, the BSD or the Mozilla Publis Licence? According to the case law, the main subject matter of these open source licence would be restrictly limited to the delivery of the software, free of charge. In our opinion, the limitation of liability, the disclaimer of warranty, 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, or the prohibition to ask for royalties would in all likelihood fall outside the category of ‘essential term’ of the licences. Although these stipulations may all be very important for any software developer who decides to distribute his product under the terms of an open source licence, the fact that they are important has no influence on the determination of the main subject matter of the licence. The Supreme Court once ruled that, even if a party argues that a particular stipulation is essential for the achievement of its goals and that, at the time of the conclusion of the contract, it had mentioned to the other party that this stipulation was not open to negotiation, it does not make this term a core stipulation in the sense of article 6:231a CC. 168 If the terms of the GPL, the BSD, or the Mozilla Public Licence were submitted to the appreciation of a Dutch court, it is quite probable that the court would come to a similar conclusion as the Supreme court in the case mentioned above regarding, for example, the share-alike clause, the obligation to make the source code available, or the prohibition to charge royalties. 4.3.3 Standard form contracts The use of standard form contracts, or general conditions of sale, is further governed by articles 6:231 to 6:247 of the Dutch Civil Code. 169 As a rule, article 232 CC states that ‘the other party is bound by the standard form contract even if, at the time of entering into the contract, the user understood or ought to understand that the other party did not know the content of the conditions’. 170 Since the adoption of the new Dutch Civil Code in 1992, it is generally assumed that general conditions of sale can be accepted in their entirety. The intention to enter into contract no longer needs to be directed to the content of the general conditions, but rather to the applicability of the set of conditions as a whole to the actual transaction. When the applicability of a set of standard terms is accepted, the other party cannot invoke the fact that he was not aware of the content of the terms. 171 This relates to the general doctrine of offer and acceptance, examined in section 4.3.1 above. The key question in this case is whether the other party understood or must have understood that, by clicking in a box ‘I agree’ or performing a certain act, he accepted the applicability of the standard form contract. 172 For this, however, this other party must have been given sufficient opportunity to take cognizance of the general conditions during or before the formation of the contract. General conditions may be annulled if they are unreasonably onerous because of their content, or because the user has not given the other party a reasonable opportunity to take notice of the 167 Art. 6:248(1) CC reads as follows: ‘A contract has not only the juridical effects agreed to by the parties, but also those which, according to the nature of the contract, result from the law, usage or the requirements of reasonableness and equity.’ 168 HR 21 February 2003, NJ 2004/567, § 3.4.3. 169 The requirement regarding the content of standard form contracts derive from the Directive on Unfair Terms in Consumer Contracts, 93/13/EEC, of 5 April 1993, O.J. L 95/29. In the context of open source licences, the provisions of this directive are mostly relevant for questions of guarantees and termination of contract. 170 Van Esch 2004, p. 181. 171 Memorie van Toelichting, Parlementaire Geschiedenis, InvW 6, p. 1573. 172 Berghuis 2005, § 2.2.1. 45
Page 1 and 2: UNRAVELLING THE MYTH AROUND OPEN SO
Page 3 and 4: TABLE OF CONTENTS List of abbreviat
Page 5: List of abbreviations AA Ars Aequi
Page 8 and 9: open content movement have been emb
Page 12 and 13: 2. Origins of Open Source Open sour
Page 14 and 15: that the linking of groups of compu
Page 16 and 17: mathematics, physics, or biology. T
Page 18 and 19: 2.1.7 The Open Source Definition Th
Page 20 and 21: Seen from a qualitative standpoint
Page 22 and 23: 1. It is being accompanied by the c
Page 24 and 25: This program is free software; you
Page 26 and 27: ecord is also constituted of the pr
Page 28 and 29: Not every open source project is as
Page 30 and 31: 3.1.3 Dutch contributions to open s
Page 32 and 33: The Apache server The official vers
Page 34 and 35: The considerations of licensers and
Page 36 and 37: formulates a set of guidelines for
Page 38 and 39: 3.3.5 Organisations OSOSS is fulfil
Page 40 and 41: under the definition of ‘open sou
Page 42 and 43: exhausts the distribution right of
Page 44 and 45: particular software product, the si
Page 46 and 47: 4.3 Formation of contract We have s
Page 48 and 49: Prior to the adoption of the electr
Page 52 and 53: general conditions. Article 234 par
Page 54 and 55: of distance communication up to and
Page 56 and 57: ‘This provision is aimed specific
Page 58 and 59: part of that work constitutes or is
Page 60 and 61: included in an act.’ 197 Accordin
Page 62 and 63: warranty of merchantability or usag
Page 64 and 65: 4.6.1 Restriction and disclaimer of
Page 66 and 67: ights and obligations arising under
Page 69 and 70: 5. Open Source and Copyright Law So
Page 71 and 72: software, only as long as the lines
Page 73 and 74: In addition, mere aggregation of an
Page 75 and 76: necessary”. 254 Whenever develope
Page 77 and 78: ‘Unless otherwise agreed, the rep
Page 79 and 80: Apart from the limited acts of load
Page 81 and 82: owner’s exclusive rights, such as
Page 83 and 84: as the license of the original soft
Page 85 and 86: “These requirements apply to the
Page 87 and 88: the work is put into circulation, e
Page 89 and 90: installation instructions and in ma
Page 91 and 92: limited to those acts explicitly en
Page 93 and 94: will decide whether the proposed mo
Page 95 and 96: only in exceptional circumstances,
Page 97 and 98: 6. Open Source and Patent Law The g
Page 99 and 100: of an infringement or an invalidati
Page 101 and 102:
Unlike copyright protection, patent
Page 103 and 104:
Parliament must then adopt the text
Page 105 and 106:
6.2 Open source and patented softwa
Page 107 and 108:
software companies may decide to fo
Page 109 and 110:
7. Enforcement of Open Source Licen
Page 111 and 112:
In the case of open source software
Page 113 and 114:
3. The right of making available in
Page 115 and 116:
even more compatible with European
Page 117 and 118:
informally out of court. They conce
Page 119 and 120:
8. Concluding remarks This book gav
Page 121 and 122:
highly problematic. Open source sof
Page 123 and 124:
9. Practical recommendations To fac
Page 125:
necessary for the exploitation of t
Page 128 and 129:
The precise terms and conditions fo
Page 130 and 131:
as distribution of the source code,
Page 132 and 133:
2. BSD and MIT 126 This is a sample
Page 134 and 135:
2. Source Code License. 2.1. The In
Page 136 and 137:
You may choose to offer, and to cha
Page 138 and 139:
8.3. If You assert a patent infring
Page 140 and 141:
4. Fiduciary Licence Agreement (Ver
Page 142 and 143:
§ 5 Miscellaneous (1) Regarding th
Page 144 and 145:
De Cock Buning 1993 De Cock Buning,
Page 146 and 147:
Horne, N.T., ‘Open Source Softwar
Page 148 and 149:
McGowan, D., ‘Legal Aspects of Fr
Page 150 and 151:
Rosen 2003 Rosen, L., 'Geek Law: De
Page 152 and 153:
Van Engelen 2004 Van Engelen, D.,
Page 155:
Cited case law The Netherlands HR 2
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