Open Source Licensing: Software Freedom and Intellectual Property Law

Bare Licenses

I now address a topic that is a kind of Heisenberg Uncertainty Principle of open source: Are open source licenses bare licenses or are they contracts? The answer to this question depends on how you look and what you're trying to measure. Open source licenses, it turns out, can be both bare licenses and contracts. Adding to the confusion, the parties to open source licenses are typically referred to as licensor and licensee regardless of whether the licenses are bare licenses or contracts.

Among the examples I cited in the previous section was one about drivers' licenses. A driver's license is issued by a government agency, but it does not constitute an agreement of any sort between the driver and the agency. There is no contract; ...