Strong Court Ruling Upholds the Artistic License (fwd)

[daniel aguilar]

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2008/8/17 Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu>

>  >*From:* Ben Tilly [mailto:btilly at gmail.com]
>
> >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
> euphoric.
>
>  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
> say/write.
>
> 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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