Uniform terminology (Re: UnitedLinux and "open source")

[Rod Dixon]

I agree that there should be wide-spread agreement on the use of terms to
describe important open source software and free software concepts, but that
this should be done so more as a public relations matter than as a contract
enforcement necessity. When adjudicating a breach of contract a court has a
duty to interpret the terms of the contract, not the label ascribed to the
contract. Hence we ought not hope that courts infer implied terms based on
contract labels.  If a litigant must rely upon the designated label of the
software license (such as "GPL," "LGPL," or some other designation) as its
primary means of providing a court with interpretative guidance of the
contract terms, then the drafter of that license or the litigant is likely
to be in trouble. Moreover, if you were suggesting that the "implied terms
doctrine" might be a valid litigation-avoidance strategy, I strongly
disagree; in my view, it is unwise for a software developer or vendor to
hide behind contract labels to avoid genuine contract formation issues.

Some might say that open source licenses are not likely to be governed by
common law contract principles or commercial law, but, if that will be the
case, I still doubt that courts will be hampered when interpreting an open
source software license that extends no further than a grant of a copyright
interest; under such circumstances, the court should, as they often do, rely
upon well-established copyright concepts.  As I see it, the
"standardization" of open source terms could be most beneficial in the
context of end-users, media, and members of the public...whom might find
open source terms confusing or contradictory. Standard terms could help in
expressing what open source is about in a systematic manner.

Rod Dixon, J.D., LL.M.
www.cyberspaces.org
rod at cyberspaces.org

My papers on the Social Science Research Network (SSRN) are available
through the
following url: http://papers.ssrn.com/author=240132



----- Original Message -----
From: "Mahesh T Pai" <paivakil at yahoo.co.in>
To: <license-discuss at opensource.org>
Cc: "David Johnson" <david at usermode.org>
Sent: Sunday, June 09, 2002 11:45 AM
Subject: Uniform terminology (Re: UnitedLinux and "open source")


> It is time for the software community to arrive at a consensus on
> terminology used in licenses.  We should cease to behave like characters
> in "Alice in Wonderland" ("each word shall mean exactly what I choose it
> to mean/nothing less, nothing more")
>
> There can be serious problems, especially in courts otherwise. What
> follows are a few reasons, as to why the software community should agree
> on standard terminology used in licensing terms.
>
> A few hundred years back, when international trade was still in its
> infancy, the merchants and traders used to have separate tailor-made
> contracts for each transaction; each with its own (and different terms).
>  This may be compared to the the present day practice where a creator of
> a software package having a separate  licensefor each different package,
> and frequently, different licences for different versions of the same
> package.  (well, almost).
>
> Later on, the merchant community realised that "tailor made" contracts
> have much in common, and a classification is possible.  They agreed on
> some standard terminology, and the benefits are there for all to see.
> For example, modern trade refers to a "CIF" (Cost, Insurance, and
> Frieght), or "FoB" (Free on Board), etc. types of contracts.  The names
> may be short, but, the legal systems all over the world attribute to the
> parties several terms, which, if reduced to writing, may often cover
> several pages.  Standardisation in more complicated  scenarios is
> achieved through organisations like UNCITRAL.
>
> I guess that software licences are right now in the midst of a similar
> process of standardisation.   Already, there is some kind of
> standardisation in software licences.  This certification process, and
> the terms and phraseology used by software developers/vendors like "this
> package is released under the  ......." and terminology like "freeBSD
> type license", "Mozilla type public license", "GPL", "LGPL", etc are
> examples of such standardisation.
>
> Few years from today, there time will come when the courts will fix
> liabilities on basis of names of the software license. This means, if it
> is shown that you knew that you are using software covered by the GPL,
> then, irrespective of whether you discussed or even actually knew of the
> actual detailed terms, the court will fix responsibility on the basis of
> "implied terms" doctrine.  The way terms are implied now, based on names
> of contracts. (like FoB, CIF, etc).  This is possible only if there is a
> industry-wide agreement on terminology.  Therefore, it is time for us to
> set aside such "elitist" mentalities, (if it exists at all) and settle
> on some standard terminology.
>
> With Regards,
> Mahesh T Pai.


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