[License-discuss] For Public Comment: The Libre Source License

[Roger Fujii]

On 8/23/2019 1:23 PM, Lawrence Rosen wrote:
>
> Roger Fujii wrote:
> > Now I'm confused.    Are you saying there is no "fair use" when the 
> target is software?   While one can weaken" fair use" via the license, 
> is this a good idea for OSI to support this?
>
> Fair use always remains a legitimate defense to copyright 
> infringement. But it is a poor basis for claiming rights to use and 
> distribute software for commercial purposes. There are many limits to 
> fair use that courts will analyze after you admit to infringement. It 
> seldom results in forgiveness.
>
> /Larry
>
Now I am even more confused.   If fair use is a legitimate defense (one 
could call this a 'right'), then there must be /some/ modifications that 
one can make that would be covered by "fair use" (I know things get 
complicated when there is any distribution, so leave that out of the 
time being).   I get your point that in order to invoke "fair use" that 
there must be an infringement first, but I think Russell McOrmond is 
saying that if "fair use" would apply, then it should not even be an 
infringement in the first place.

Seeing as this is a chicken/egg problem, I think a good way out is for 
the people with licenses where this is an issue at least spell out they 
they think constitutes "fair use" in regards to the license or that 
there are no "fair use" cases, and OSI should come to a position on 
"fair use".

Roger Fujii

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