[License-discuss] License compatibility - reg

[Ben Tilly]

On Wed, Jun 26, 2013 at 4:46 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Matthew Flaschen (matthew.flaschen at gatech.edu):
>
>> Possibly, if the court decides the license is ambiguous.  They might
>> look to the preamble, as well as the licensor's statements (as you said,
>> the licensor is often not the license drafter).
>>
>> But I think it's reasonable to think they may consider the license
>> drafter's statements as well.
>
> You may think that's reasonable, but in my years of study of business
> law[1], I cannot recall any case where the drafter of a boilerplate
> legal vehicle was consulted by any judge, in a situation where the intent
> of a party to some legal action is at issue, and the drafter was not a
> party.  Business contracts would be a prime example.  The judge looks to
> the text.  If the text is somehow murky, he/she looks to other guidance
> apparent in what the parties have written, said, and done elsewhere.

This may be true, but there are many cases where someone who in some
way represents the drafter of a boilerplate legal vehicle filed an
amicus brief that was given due weight by a judge.  The drafter does
this because it is in their interest to get precedents saying that the
legal vehicle actually means what they intended it to mean.  The judge
can think this matters because it sheds light on what the participants
may have thought they were agreeing to.

For example I point to the efforts of Allison Randal of The Perl
Foundation in the case Jacobsen v. Katzer in litigation regarding the
Artistic License.

[...]
>> If you're not certain how the license will be interpreted in court, I
>> think it's conservative (safer) not to do things the license drafter
>> interprets as forbidden.
>
> Same logic error in my view, sorry.  The drafter is not a party to the
> issue in any way.
>
> But I'm glad to agree to disagree, pending the arrival of relevant
> caselaw that I firmly predict will occur exactly never because nobody is
> going to litigate based on such a, ahem, speculative theory of law.  (My
> view, etc.)

In the example that I pointed to, the judges (multiple, this was an
appeals court) came to the decision that Allison Randal supported,
using lines of reasoning that she also supported.  Did her support
cause the judges' to give those arguments extra weight?  It cannot be
proven one way or another.  But it is not impossible that it could
have.

> [1] No, I'm certainly not a lawyer.  I studied for and passed the
> Certified Public Accountant exam, for which one must study and master a
> fair amount of business law.  I'm not claiing expertise; just a more
> seasoned than average amateur and one who tends to avoid many of the
> more common errors.

I have significantly less legal training than you do.  Please feed my
comments through your knowledge and prior beliefs, then only give them
weight according to the degree to which they make sense to you.  And
before taking any action based on the conclusions that you come to,
feed that understanding through a competent lawyer.

Should that process lead you to to a conclusion that later proves
inadvisable, feel free to sue the lawyer.  That is, after all, what
you paid them for.