"...Open-source licenses rely on copyright law, which
is enforceable by the holder. Although the copyright law provides a
solid foundation for copyright owners, transferring those rights to
other parties under license often becomes a matter for courts under
state commercial laws and perhaps UCITA (Uniform Commercial
Information Transactions Act).
Individual licenses negotiated at arm's length between parties
often include the requisite offer and acceptance to form a
contract. Licenses that are mass-produced for the open-source
community, however, may not fare well under state commercial codes.
For example, the GPL grants a direct license from the copyright
holder to each developer or user with each software transfer. As
software passes through the hands of users, offer and acceptance
becomes diluted, and courts may find this unenforceable. Also, any
license amended by one party without agreement on the terms of sale
by the other party amounts to a nonbinding "shrink-wrap"
license.
Open-source licensing benefits from a strong community of
developers who are more committed to writing good code than to
litigation. Vituperation from the community against open-source
offenders is enough to bring most license challenges to a halt.
This benefit, however, is also a burden where the courts have not
been able to interpret the licenses. This may change as more and
more enterprises become involved with open-source development."
