Strong Court Ruling Upholds the Artistic License (fwd)

Tzeng, Nigel H. Nigel.Tzeng at
Sun Aug 17 19:22:18 UTC 2008

>From: Ben Tilly [mailto:btilly at]

>I therefore find it hard to believe that anyone who has read the
>decision could fail to understand that precedent was *not* ignored.

I might ask for clarification to understand why they state what they 
stated since I gathered from his post that he read the decision.
He could, of course, be wrong.
>When added to the repeated comments that say that the open source
>community should want the exact opposite of what most in that
>community do, in fact, want, I had to ask whether the post was
>intended to generate hostile responses rather than useful dialog.

I found this paragraph to be interesting:
"The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software.  The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach.  Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages."
I don't know if the analysis is correct but if so I would find it not entirely 
That there was a certain bias was obvious when the terms "Mr. Moglen
and his followers" and "wishful thinking" was used.   It's always useful
to understand where folks are coming from when evaluating what they
That said, Mr. Moglen does have a position and followers that are not 
always aligned with open source but the goals of the FSF.  There are 
important differences between the two.
I read what Mr. Moglen writes with great interest but I keep in mind
two things:
1) He's an advocate for a certain position and not just a lawyer.  This
position is somewhat similar but not identical to my own.  Therefore
certain strategies are good for him but not necessarily good for me.
That's okay, of course, since he's not my lawyer.  Neither is he the
lawyer for the OSF.
2) In his profession, reality is whatever he can convince a judge to
say is reality.  Therefore he can argue with complete sincerity and 
conviction that reality is X if he believes he has a strong enough 
case to have X upheld.
Even if !X can also be argued with complete sincerity and conviction
by a different lawyer for the same reasons...
In our profession, reality is whatever we can convince our compilers
to accept as reality. :) 
>To complete the analogy your professional opinion should be
>diametrically opposed to all other publicly available information, and
>your opinion should repeatedly say that people don't want what they
>say they do, and do want what they say they don't.
I wonder sometimes if we really understand what we want from a legal
perspective.   I read this more as a "beware what you ask for" kind
of warning.
As in "we got our victory but it comes with some baggage".

>My understanding is that software copyright holders enjoy the exact
>same rights as other copyright holders.  The difference is that in
>software we tend to use copyrighted material in different ways.

Some lawyers disagree with respect to EULAs, licensing vs ownership,
etc.  Perhaps Jacobsen v. Katzer is not a good example of this.  I was 
following the Blizzard case with more interest.
I look forward to Marc Whipple's assessement of the OP's piece.
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