DRAFT FAQ: Free vs. Open

John Cowan cowan at ccil.org
Fri Jan 11 20:58:59 UTC 2008

Lawrence Rosen scripsit:

> By the way, regarding the basic question, I find it comforting that all
> of FSF's *free* licenses are (or soon will be) deemed to be open source,
> and a growing number of OSI-approved *open source* licenses are deemed
> to be compatible with FSF's new licenses. We've all mellowed somewhat,
> and we're all ethical.

Beware of talk of "deeming", Larry.  (I was just dealing with
this in another context.)  Eben Moglen plainly tells us at
http://emoglen.law.columbia.edu/publications/fict.html :

	In the technique of deeming we find the conscious expression
	of the fictional nature of the subject matter, for when X is
	"deemed" to be Y it is ordinarily conceded that X is not Y,
	and is known not to be Y.

But he does add a mitigating footnote:

	Though in this context one is tempted to recall the position
	of that acute, though fictional, jurist Lord Mildew, who said:
	"There is too much of this damned deeming." Travers v. Travers,
	noted in A.P. Herbert, More Uncommon Law 80 (1982).

He made the Legislature meet at one-horse       John Cowan
tank-towns out in the alfalfa belt, so that     cowan at ccil.org
hardly nobody could get there and most of       http://www.ccil.org/~cowan
the leaders would stay home and let him go      --H.L. Mencken's
to work and do things as he pleased.              Declaration of Independence

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