Subscription/Service Fees - OSD Intent

Smith, Devin DSMITH at
Thu Mar 29 20:51:15 UTC 2001

Lou Grinzo wrote:

> I've contended for a long time that the primary problem with open/free
> licenses is that they're not specific enough.  

My experience (as a lawyer) with open/free licenses is that many of them are
not properly drafted.  The GNU GPL is particularly difficult to interpret,
probably because it was written by a non-lawyer.  The resulting legal
uncertainty makes it very difficult for me to give sound advice to my
clients, and makes licensing rights in or out under the GNU GPL very risky.

Statements of intent are fine as separate commentary but only muddy the
waters when included in documents that are meant to be legally binding.

With regard to specificity, sometimes more is better but sometimes it's not
needed and can be harmful.  Statutory and case law frequently fill in the
"gaps" left in agreements and there's no need to elaborate.  For instance,
if a license grants the licensee the right to create derivative works of the
licensed software, the law provides that the licensee owns the derivative
works created by the licensee (but not the underlying work on which the
derivative work is based).  So there's no need to add a provision that
"licensee owns the derivative work and may distribute it . . ."  In fact,
adding a poorly drafted provision on the issue is even worse than staying

Finally, Randy Kramer is absolutely correct that "it is sometimes considered
an advantage to never change the language of a law or agreement but allow
the interpretation of the language to evolve."  The best example of this
that I can think of is insurance policies.  The wording of the policies --
which is pretty standard from insurance company to insurance company -- is
archaic and confusing to someone not familiar with insurance law.  But the
wording has been the subject of decades of court decisions (e.g.
"advertising injury" includes claims of trademark infringement) and the
meaning of most policies is now pretty much fixed.  Insurance companies are
loath to insert new language into policies lest the new wording be
interpreted in a way that they did not intend.  (There is, I believe, a lot
of litigation brewing over the Y2K exclusions that insurance companies
hastily issued before 1/1/00.)

In the case of Open Source licenses, however, this stuff is too new for
there to be any value in simply sticking with bad language.  I did a search
of Lexis recently and could not find a single case interpreting the GNU GPL
or the Mozilla GL.

Devin Smith

-----Original Message-----
From: Randy Kramer [mailto:rhkramer at]
Sent: Thursday, March 29, 2001 2:18 PM
To: license-discuss at
Subject: Re: Subscription/Service Fees - OSD Intent


And, if that is too much work, maybe (and I say maybe because I think
there may be some legal risks) someone could create a plain language
statement of the intent of open source.  

By this, I mean something like:

"It is the intent of the open source licenses to promote blah blah blah
-allowing software to be distributed at no charge
-preventing anyone from charging for open source software
The approved Open Source licenses have been approved on the basis that
we (the OSF or whatever) believe the terms of the approved licenses
achieve the objectives stated above."

(Maybe this is already done somewhere??)

I have occasionally heard that, in the legal profession, it is sometimes
considered an advantage to never change the language of a law or
agreement but allow the interpretation of the language to evolve.  I
don't know the reasons for this -- I may have been given some reasons
once, even by a lawyer -- IIRC, one viewpoint is that if the language is
not changed there may be a stronger case to say such and such agreement
is based on a long line of precedent which has never changed. 

And maybe, if an amendment is made to an Open Source license to
explicitly prohibit charging for Open Source software, it opens the door
to an argument that licenses before the amendment allowed the charging
of fees.

But, if so, we can do better, can't we?


Randy Kramer

Lou Grinzo wrote:
> I'm sure I'm going to get beat up for suggesting this (as happens every
> I offer the idea, it seems), but what the heck...
> I've contended for a long time that the primary problem with open/free
> licenses is that they're not specific enough.  Look at this conversation
> thread that's been running for days.  We have a bunch of intelligent,
> honest, and genuinely interested people here who are having a hard time
> figuring out just what in the world the GPL and/or the OSD mean.  How the
> heck are average computer users or people who aren't as benign in their
> outlook on OS supposed to interpret these documents?
> My solution is for some group of people (like us) to collectively assemble
> list of every permutation of activity we can think of involving
> software--sell it modified/unmodified with/without source, linked/not
> with non-free/open SW, bundled/not bundled with other software, etc.--and
> then have the licenses that care about where such lines are drawn include
> list that explicitly says something along the lines of, "Subject to the
> other terms and conditions of this license, you are granted the rights to
> the following things with this software.  You are not granted the right to
> do anything with this software that is not explicitly mentioned below
> you make separate arrangements with the original author(s)."  [list of
> activities]  Obviously some licenses, like the BSD license, would not
> benefit from changing, since it's so wide open to begin with.
> Perhaps I'm just a simple-minded programmer and writer, but I think this
> would help clear up matters a great deal for everyone involved if the
> licenses said exactly which rights they did and didn't grant, so no one
> to divine what the spirit of the license was, or go ask RMS what the GPL
> really means, etc.  Yes, it would take some work, and yes, it would
> need some revising as we collectively think of some details only after
> all had a chance to think about it for some time, but in the long run
> wouldn't that be far better than perpetuating all this confusion?
> Take care,
> Lou
> -----Original Message-----
> From: phil hunt [mailto:philh at]
> Sent: Thursday, March 29, 2001 5:57 AM
> To: license-discuss at
> Subject: Re: Subscription/Service Fees - OSD Intent
> On Wed, 28 Mar 2001, David Johnson wrote:
> > On Thursday March 29 2001 03:25 am, Eric Jacobs wrote:
> >
> > > It is this sort of illogical argument that will prevent this issue
> > > ever coming to rest. Let me offer an analogy.
> >
> > I did manage to pass logic in college. However, I don't always do so
> in
> > English. Let me restate what I meant:
> >
> > Software that requires a registration fee is possible, and exists. Such
> > software cannot be considered Open Source, however.
> What about software that require registration (e.g. by email), but not
> a registration *fee*? Can that be Open Source?
> --
> ***** Phil Hunt *****
> "An unforseen issue has arisen with your computer. Don't worry your silly
> little head about what has gone wrong; here's a pretty animation of a
> paperclip to look at instead."
>          -- Windows2007 error message

More information about the License-discuss mailing list