MediaTech Law

I like to think that somewhere in America, at this very moment, a college kid has just agreed without reservation to accept five bucks from his friend to drink an entire bottle of hot sauce. Non-lawyers are often surprised to learn that, public policy concerns aside, such an agreement contains all the elements necessary to create a legally binding contract: Offer, acceptance and consideration.

Part of a lawyer’s job is to identify relevant legal issues lurking beneath factual scenarios. Issue spotting can be frustratingly difficult, however, because, as the absurd hot sauce agreement illustrates, the law is often counterintuitive. Counter-intuitions abound in the weird world of open source license agreements. License agreements have become commonplace in our tech-saturated lives. If you’re not sure what they are, jog your memory to the last time you downloaded an app for your laptop or smartphone. Remember being asked to read and agree to an endless list of terms and conditions? That contract that you “read” and agreed to was almost certainly an end user license agreement to use the app for a specific purpose.

Over the past twenty years or so, several copyright licensing movements have gained traction. In general, these new types of licenses challenge traditional notions of copyright protection by granting licensees the right to modify the original copyrighted material for future use free of charge so long as certain promises are kept and/or conditions are met.

One well-known movement is the Open Source Initiative, which reviews and approves open source software (OSS) licenses. OSS licenses typically provide licensees with the right to access the source code of the original software program (hence “open” source) and create new software programs subject to the terms of the license.