[License-discuss] License Stewards

[Kuno Woudt]

Hello,

On 10/05/2012 08:27 AM, Rick Moen wrote:
> Quoting Kuno Woudt (kuno at frob.nl):
>
>> Even if this is true, someone aiming to re-use the license text for
>> a new license may not want to rely on it.
>
> I have my doubts about licences lacking expressive elements as that
> concept is defined in copyright law, FWIW.

I certainly expect there to be a set of licenses which do not have 
enough expressive elements.  But my impression is that the bar is very 
low here in the Netherlands, you only need a bare minimum of creative 
expression in a work to qualify for copyright protection [2].

>> It seems better for the license steward to either explicitly state
>> that they regard the license text as functional and not
>> copyrightable or to just license the license text appropriately.
>
> Er, the licence steward's opinion on that substantive legal question
> (such as it is) strikes me as lacking relevance.  Either the licence as
> a work is copyrightable in accordance with its own separate nature, or
> it isn't.  The judge isn't going to ask the licence steward what he/she
> thinks, but instead will analyse the work.

Over here, things are not that clear cut.  Under dutch law a judge will 
not look at just the literal text of a contract, but also the intent of 
the text as it was understood by the parties at the time, and what the 
parties could reasonably expect from each other (The so-called Haviltex 
formula [1]).

I expect this would apply to copyright licenses as well (though I could 
very well be wrong, I am still not a lawyer).


Considering this in an international context, it still seems better to 
explicitly license the license text.  Is there any harm in doing so?


-- kuno / warp.

[1] https://nl.wikipedia.org/wiki/Haviltex
[2] https://nl.wikipedia.org/wiki/Van_Dale/Romme-arrest
(sorry, links are in dutch.  I haven't found good english descriptions 
of either of these cases).