written offer valid for any third party Re: OSI enforcement?

Roger Fujii rmf at lookhere.com
Sat Jan 12 15:58:15 UTC 2008

Rick Moen wrote:

> Please note that I did _not_ say "any FTP availability over a minimum of
> three years, no matter how defective or incapable" -- and, last I
> checked, judges had not yet had the ability to apply the venerable 
> "reasonable man" standard surgically excised from their brains.

Relying on judges, or even worse, juries to come back with a reasonable
result is something I would never bet on.

> Now, much though I love straw-man arguments, was that _really_ a
> sensible use of your time and mine, Roger?

Honestly, I didn't think I said anything that was that contentious.

>>FSF has from the beginning argued that 2b) was meant for physical media...

oops.  3b)

> They can _argue_ whatever they wish, but the licensors' wishes are
> embodied in the actual text of the licence, not in the licence drafter's
> statements (nor the statements of groups to which the drafter belongs).
> More often than not, FSF isn't even the licensor in the first place.

Agreed.  But, as I said in the past, if there is a dispute of what something
means, it's not as if what they say has NO influence.

> Even where FSF _is_, courts will (at least in common-law jurisdictions
> -- and I believe civil law countries are even more emphatic on this
> point) apply the "parole evidence rule":  It will assume that, whenever
> an agreement or other instrument has been committed to writing, that it
> was intended to be the final and complete expression of the agreement
> between the parties, and deny assertions that earlier alleged oral or
> written agreements (or any contemporaneous oral agreements) should
> modify or influence the terms. 

I fail to see how this helps.  It's not like the wording of the license
changed since 1991.  There should be ample documentation that these
words had certain meanings in the past.  You argument is that those
meanings are no longer valid _and_ that the receiver understands that.

> (And, no, FSF did not argue that bit of humbug "from the beginning",
> only since around year 2001.)

This is the whole point of contention.  Here is a thread over practically
the same issue in *1993*:

except he used Bernoulli (now there's a blast from the past! :) )

Unfortunately, doing historical searches that far back yields very little,
so I apologize for not giving a better reference.  What I remember is that FSF
even then argued that it was not sufficient to have a public repository.

Don't get me wrong.  I happen to agree with your view.  But as I have
never seen FSF say they accept ftp as a fulfillment of 3b, and have seen
many times them saying it is not, I just disagree with your characterization
about what they are saying.

>>Unfortuantely, FSF has a vested interest not to re-interpret words in
>>current context, so you have this particular problem.
> Oddly, I'd say FSF has over the years shown a repeated tendency to
> interpret words variously at different times.  E.g., their
> pronouncements on what is a derivative work have been all over the map,
> over the years.  (They are not alone in this.  Torvalds, for one, has
> been even more inconsistent.)

Have they?  It always seemed to me they they defined derivation as the
maximal definition in a particular context, only constrained by the
gpl itself, problem being that "reasonably considered independent
and separate works" is in the eye of the beholder.


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