[License-discuss] License compatibility - reg

[Ben Tilly]

On Wed, Jun 26, 2013 at 9:35 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Ben Tilly (btilly at gmail.com):
>
>> 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.
>
> On what question, though?  That matters, nei?
>
> Upthread, Matthew states his view (and I'm trying in good faith here to
> paraphrase; my apologies in advance if I err) that it's reasonable to
> consider the licence drafter's views on the question of what the
> licensor agreed to and subject to what conditions.

I would state that in a weaker form.  I would state that the license
drafter's views may prove to be not entirely irrelevant.  Both because
the license drafter's public proclamations may be introduced as a
pertinent fact in establishing what the likely intent and
understanding of the agreement was, and because the license drafter
may attempt to persuade the court of their views.

If you flip what I said, you could reasonably infer that the fact that
the license drafter thinks X usually will be irrelevant.  I would
emphatically agree with this.

>> 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.
>
> Like Matthew, you assert that this happens (you say 'may'), but you
> cannot point to it occurring.  (See below.)  According to my
> understanding of the basics in this area, it would be improbable
> because, as mentioned, the drafter is just not (in the general case) a
> party to the legal action in any way -- nor evan a qualified expert
> witness on the question under discussion (what the licensor intended).

In the general case no.  As to whether I can point to a relevant
example, I still believe that I did.  (See below.)

> Because the drafter couldn't possibly be.  You see.  Or maybe not.  I've
> mentioned this datum a few times because, it seems to me, it should be
> dispositive.  Maybe I'm hallucinating; maybe you and Matthew are.  I'm
> glad to agree to disagree.  {hint}
>
>> 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.
>
> I talked to Ms. Randal (very briefly) about that case at the time.  My
> impression was that the judge did not consult her on the nature of what
> Jacobsen had decreed in his licensing, but rather on other matters
> entirely.

I talked to her (also briefly) about that case both at that time and
later.  According to my recollection, she was definitely of the
opinion that her statements about whether the license should be
enforceable at all helped sway the judge to the position that it
should be.

Remember, the critical legal issue was not whether Katzer had done
things that they license said he shouldn't.  He clearly had and nobody
disputed that.  It was whether the existence of such a broad public
license precluded any possible right to sue under copyright law.  The
initial decision by the Hon. Jeffrey White was that the license did
preclude that, and without a case in copyright or any legally
enforceable contract, there was nothing for Jacobsen to sue over.

Thus my point, again.  The fact that Allison Randal strongly held the
beliefs that she did about the enforceability of the license caused
her to work hard to find legal arguments that may, in fact, have
swayed a judge.  If so, then the fact that she held those beliefs is
not entirely irrelevant to the decision that got handed down.  Though
clearly relevance would be through a tenuous chain of causation.

>> 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.
>
> Um, that's a heck of a handwave.  You have just talked all around the
> actual point of contention:  Was Randal consulted to help the judge
> determine the nature and purport of Jacobsen's licensing conditions?
> No, she was not.

That's not the point of contention.  The point of contention is
whether Randal's beliefs were entirely irrelevant to the outcome of
the case.

We are in violent agreement that she was not directly consulted.  That
her beliefs were not a material fact in the case.  That the actual
arguments through which she acted on her beliefs derived none of their
force from the fact that they were her beliefs.  And so on and so
forth.

But the point of contention remains.  I claim that when the drafter of
a license becomes aware of possible precedent being established which
would affect their license, there is a good chance that said drafter
is likely to attempt to sway the court to what the drafter believes is
right by presenting their best arguments in an amicus brief.  There is
no particular reason to believe that this effort will prove to be the
deciding factor, but if it is not, it will not be for a lack of
trying.

> (By the way, I try very strenously to neither need to sue my lawyers,
> nor wish to.  Fortunately, they're lovely people and remain on my
> Christmas list.  Well, my metaphorical one, anyway.)

I go one farther.  I try very strenuously to not need to have lawyers.
 I've mostly succeeded.