[License-discuss] what would de-listing of licenses look like?

[Ben Tilly]

I do not believe that you are fairly describing the cause of what
happened.  At issue was not the drafting of the license, it was the
fact that it was the first time that the legal idea of "follow the
license or we sue for copyright" had ever been tested in a US court
for software that had been given away to the world on generous terms.

The judge's ruling was based on the fact that software was given away,
for free, with no expectation of a reward.  Therefore there was no
loss in its being appropriated by a third party.  The fact that the
software was available to everyone on generous terms meant that there
was no cause under copyright law.  The judge ruled that the license
could be viewed as a contract, but of course the basic elements of a
valid contract were missing and so you couldn't sue under that either.

If the hobbyist had used the GPL as a license, the same facts would
have existed, and the judge could easily have ruled the same way.  In
fact the reason why the case was so important is exactly because the
precedent undermined the enforceability of all open source licenses
where no contract existed.

For verification, the judge's ruling and reasoning are available at
http://jmri.sourceforge.net/k/docket/158.pdf.

On Wed, Mar 6, 2013 at 10:09 PM, Bruce Perens <bruce at perens.com> wrote:
> The license isn't really "standing up" when you have to file a writ of
> certiorari after a judge throws his hands up at the license text and
> pronounces it to be tantamount to a dedication to the public domain. That
> was no easy appeal to win, and the Open Source developer was seriously
> damaged by the cost and the 5-year process. It cost me a good deal of time
> and work too.
>
> A license that stands up would, I hope, require much less time to dispute
> and would be parsed as intended by the court.
>
> So, what the Artistic License 1.0 made much more difficult for the poor Open
> Source developer is exactly what I'd like to fix. And yet the Artistic 1.0
> is not the one I thought of first upon seeing this discussion in progress.
> We have much worse.
>
> Thanks
>
> Bruce
>
>
> John Cowan <cowan at mercury.ccil.org> wrote:
>>
>> Bruce Perens scripsit:
>>
>>> 1. They are ambiguous or likely to perform in court in unexpected
>>> ways, should they ever be litigated. And thus they are harmful to
>>> their users. De-listing is a prompt to the organization that
>>> originally created the license to replace it with an accepted
>>> license or to submit a new version with greater legal competence in
>>> its construction. These would be the "crayon" licenses, mostly,
>>> those written without legal counsel.
>>
>>
>> And yet the Artistic License 1.0, which is riddled with ambiguities and
>> a prototypical crayon license, is one of the few that has been tested
>> in court -- and stood up.
>
>
> --
> Sent from my Android phone with K-9 Mail. Please excuse my brevity.
>
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