Wording in Open Source Definition
Jon_Powers at adc.com
Fri Feb 16 14:48:38 UTC 2001
Though the word "may" can be interpreted as permissive instead of mandatory, the phrase "may not" clearly negates the permissive sense of the word "may."
Also, your lawyer's argument violates another canon of construction that says you must interpret contract language in a way that gives meaning to each word in the sentence. In another words, an interpretation must not make words in the sentence unnecessary. In this case, if the authors had intended to use the word "may" in a permissive sense (i.e., it is okay for your to not charge a royalty and it is okay for you to charge a royalty), they would have used the word "may" without the word "not." Your lawyer is reading the word "not" out of the sentence and making it unnecessary.
From: John Cowan [mailto:cowan at mercury.ccil.org]
Sent: Friday, February 16, 2001 6:11 AM
To: Richard Boulton
Cc: license-discuss at opensource.org
Subject: Re: Wording in Open Source Definition
Richard Boulton scripsit:
> We were unable to come to a satisfactory agreement, so I am asking this
> list: "Is it permissible in any circumstances for an Open Source license
> to require a royalty or other fee for sale of the software?"
The answer is clearly "no".
> If the answer is no, I humbly suggest that the "may not" be changed to
> "must not" where it appears in clause 1, and that "free" be changed to
> "free-of-cost" in the rationale for clause 1, to avoid others falling into
> this same argument.
I think you are absolutely right, and "may not" should be changed to
"must not" everywhere.
As evidence that "may not" means "must not" in this document, however,
consider clause 6. The second sentence purports to be an example of
the general principle given in the first sentence, yet the second
sentence reads "may not" where the first reads "must not".
John Cowan cowan at ccil.org
One art/there is/no less/no more/All things/to do/with sparks/galore
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