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

[Mahesh T Pai]

Rod Dixon wrote:

 >... but that this should be done so more as a public relations matter than as 
a contract
 >enforcement necessity.
 >

Courts are more likely to enforce a contract *as the parties understood
it*. In "standard form" contracts, where one party uses identical terms
to enter into several contracts with several persons, the courts will
tend to interpret the contract in favour of the person against whom a
particular interpretation is claimed, especially if the terms are
capable of two meanings. This is known as the the principle of contrary
construction.

Thus, if I (an individual) am sued by alleging that I have violated the
terms of a hypothetical license which described itself as "free
software" (free, as in freedom; free as RMS defines it), I can escape
liability in court by claiming that I understood "free" to be "free" as
defined in Art 1.1 and clarified in Art 1.5 of
http://www.cyberspaces.org/osd2002/OSD2002.pdf.

Hence, this is not *merely* a question of public relations.

 >in my view, it is unwise for a software developer or vendor to
 >hide behind contract labels to avoid genuine contract formation issues.
 >
On the contrary, contract labels will, to a great extent solve the
problem described as below in the above document:-

"A number of websites marketing open source or free software either
inadvertently or by design do not allow customers to view the software
license until after the software has been downloaded, unzipped (or
decompressed), and the install routine initiated; more troublesome, some
vendors have adopted the practice of designating that the license is
"the GPL," but do not post the terms of the license on the website or
provide a copy in any apparent electronic format."

With Regards,
Mahesh T Pai





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