[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

[Chris Travers]

On Wed, Jun 6, 2012 at 7:23 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Chris Travers (chris at metatrontech.com):
>
>> That assumes the goal is to invalidate a license's grant of rights.
>
> Shortly below what you quoted:
>
>  There are of course other parties who might sue (other than a licensee),
>  and other matters that might be asserted.
>
>
>> Far more likely, I would think, would be arguments over the scope of
>> the requirements of the license.
>
> I can't think of requirements in any OSI Certified licence that could be
> credibly argued to lie outside licensor's rights to require observance,
> but would be interested if you can think of any.
>
> Some _theoretical_ requirements might be outside licensor's rights of
> enforcement, e.g., obvious examples like ones in violation of criminal
> law.  The case of requirements impossible to carry out is perhaps a bit
> more interesting; I'd be interested to see caselaw.

We may be talking past eachother.  My point is that most litigation is
likely to be where the party accused of violating the license thought
they were in compliance with the letter of the license and the
plaintiff.copyright owner thought they weren't.  This is where most
enforcement action in court is likely to be, because otherwise as you
say it's a no-win for the party clearly in violation of the license.
Therefore, I think that lawsuits will more likely occur regarding the
scope of requirements of the license than excusing one from the
requirements directly (but those might in rare cases, for example
arguments that interoperability is fundamentally protected as a matter
of policy in copyright law provided patents are not at issue seems to
be an interesting argument where copyleft licenses are at issue).

So for example, suppose an OpenBSD developer sues a Linux developer
for copyvio due to purporting to sublicense BSD code under the GPL
with only de minimis modifications.  If the BSD developer prevails, is
that a successful enforcement of the BSD license?  If the court rules
that the BSD license constructively provides for sublicensing, does
that make it failed enforcement?  Similarly if Nusphere had persevered
and prevailed against MySQL, would we count that as unsuccessful
enforcement f the GPL?

I just don't see raw court numbers as being very helpful at showing
anything other than perhaps which licenses attract more litigation.

Best Wishes,
Chris Travers