[License-discuss] License compatibility - reg

[Ben Tilly]

On Wed, Jun 26, 2013 at 11:14 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Ben Tilly (btilly at gmail.com):
>
>> 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.
>
> I'm pretty sure you have changed the subject.

That may be.  I jumped in at a point where it looked to me that you
were saying that the views of drafters (and by extension maintainers)
is irrelevant, with an example of how it could prove relevant.

But reading the upthread discussion in detail that I had not before
jumping in, I can't come up with any realy examples where the views of
drafters actually proved relevant to the facts of any case.
Furthermore while I can constructed strained threads of hypotheticals
in which it could potentially be argued to matter, they bear great
resemblance to the chain of events leading from a flap of a
butterfly's wings to a storm halfway around the world some months
later.

> If your assertion is merely that judges may consult various parties
> including licence drafters about various things in a case about
> copyright owner X's software licensing -- leaving aside the awkward
> point (for you) that Ms. Randal was not a licence drafter in this or to
> my knowledge any other case -- then, OK, sure.  Almost tautologically
> true, actually.

Not just "may consult" but "may be approached by".  And yes,
tautologically true.

> Problem:  This was simply not, to the best of my recollection, what was
> being talked about upthread.
>
> Rather, it was some vaguely described situation where one Mr.
> Satyanarayana was said to be 'combining in some way' codebases under
> various licences one of which was GPLv3 from FSF, to which Matthew and
> then you, if I understood correctly, asserted that someone wishing to
> determine what obligaions matter (including, say, judges) should "listen
> to' FSF.

Ah.

There is actually good reason to pay attention to the FSF on this
issue.  They know their own license, have done their own analysis of
precedent, have put forth a position that they think could be argued
for, and there are a lot of people who give their words weight.  So
staying within the bounds that the FSF sets will lessen the likelihood
that someone will ever think they have something to sue you over, and
lessens the likelihood that if someone does sue you, they will find a
potentially successful argument which you failed to notice in advance.

Furthermore if the FSF is a copyright holder to code that you're using
(they do have copyrights on quite a bit of it), what they have
publicly said is a particularly good predictor of what will keep them
from getting annoyed at you.

None of which matters if you get to litigation.  But a lot of what
lawyers do is reduce the possibility of future disputes.  Not
challenging the FSF guidelines would be a safe way to do that.  Even
if you are morally certain that you would, in fact, win on a
particular point.

> To which I said, when copyright violation gets litigated, judges consult
> competent and relevant evidence about what licensors' terms were,
> starting with the written licence text and (if necessary to resolve
> ambiguity) other competent and relevant indicators about what licensors
> intended, such as their other writings, statements, and actions.

The threat of litigation is, of course, important to the enforcement
of copyrights.  However it is rare for open source software to be
enforced through actual lawsuits.

> FSF is not in the general case useful in that regard.  Hence my point.
>
> How you got from there to the Jacobsen case and Alison Randal, notable
> Perl persona but not licensor, I am not sure I know but pretty sure I
> don't really need to know.
>
> The rest of this seems to be a complete waste of time.  If you disagree,
> feel welcome to carry on without me.
>
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