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

[Bruce Perens]

Ben,

Yes, my testimony was to establish the economic interest in attribution of Open Source software. However, it's going too far to say that the license terms were not a problem. The judge's finding starting at "Plaintiff's Claim Sounds in Contract, Not Copyright" is that the Artistic License 1.0 text is self-invalidating. It's not so clear that a better drafted license would have reduced us to basing the appeal on the economic value of attribution alone.

Thanks

Bruce

Ben Tilly <btilly at gmail.com> wrote:

>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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-- 
Sent from my Android phone with K-9 Mail. Please excuse my brevity.
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