Subscription/Service Fees - OSD Intent

[Ben Tilly]

"Smith, Devin" <DSMITH at nixonpeabody.com> wrote:
>
>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.

The GNU GPL also is a very novel structure.  IANAL, but I
have seen plenty of lawyers agree that it is a copyright
statement that offers a contract.  Should you proceed to
distribute you have accepted the contract and are bound
to it under contract law, *NOT* copyright law.  Or at
least that is how the license is intended to work.

In the absence of court decisions, it is hard to say that
this would work.  But that is the intended mechanism.

>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.

This comment is only true when the intended audience is
a group of lawyers.  Consider well that the majority of
people who read the GPL and try to understand it are not
(in my experience) lawyers.

>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.)

The best known example among politically aware programmers
is probably the US Constitution.

>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.

There is none for the GNU GPL.  The resulting uncertainty
is often branded as a weakness.  But IMHO it should be
viewed as a strength.  Plenty of companies who were not
particularly friendly to the GPL have been challenged for
GPL violations.  *NOT ONE* (after full review by their
lawyers) thought that their odds of winning a case against
it was good enough to take it to court.

In my books that is pretty reassuring. :-)

Cheers,
Ben
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