Subscription/Service Fees - OSD Intent

[Lou Grinzo]

Devin,

Good points about laws remaining fixed (as in unchanging, not "not broken"
<g>), and also the business about not saying things that don't really need
saying.  But I still contend that we could collectively put together a much
clearer and more comprehensible license.

As an editor an writer in the Linux field for some time, I'm dismayed by all
the e-mail I've received from people asking how to interpret licenses.  Many
of these people are new to the concept of free/open source licensing, but a
sizable percentage aren't, and they've traditionally used the GPL and simply
"thrown code out there" without really understanding what they're doing.  I
think we can do better than that, and it will benefit everyone involved.


Take care,
Lou

-----Original Message-----
From: Smith, Devin [mailto:DSMITH at nixonpeabody.com]
Sent: Thursday, March 29, 2001 3:51 PM
To: license-discuss at opensource.org
Subject: RE: Subscription/Service Fees - OSD Intent

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
silent.

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