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<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>I have not stated
anything about the validity of the BSD or Microsoft licences. I have not said
that the BSD approval must be resigned.<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>But the concern remains,
and if Microsoft, that currently applies a MUCH more severe policy to enforce
the protection of its registered trademark than the Berkeley University (because
it is a private organization without public founding, when the Berkeley University
receives some public founding or has some privileges that requires it to automatically
concede some additional rights to the public: here, the “public”
term means the sector of activities organized by the government or created by
law which creates a public domain; it does not designate the “public”
term used in the classification of organizations in stock exchanges, because
Microsoft is traded publicly is such stocks, i.e. within a market open to the
public.)<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>The level of protection
of trademarks (i.e. the maximum bounding of domains where such exclusive protection
is guaranteed by law) is relevant because it defines if a simple nominative reference
to a trademark by a third part is “fair” or can be considered “abusive”
by the trademark holder; the delimitation between “fair” and “abusive”
should not be so weak that it could require the interpretation and a further
decision by a judge (because in this case, the most powerful defendant has much
higher chances to win in the trial, and the less powerful defendant will most
often have to resign immediately, as soon as it receives an threatening injunction
by the largest party.<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>The delimitation should
then avoid any “implicit” reference to the unclear term “fair”,
but to the much more explicit terms “granted” and “not
granted”. This is normally the main reason why written and signed contracts
and licenses are created: it avoids weak interpretations by any party to the
contract of license or some other different interpretation by a “neutral”
third-party like a judge arbitrating some litigation between the directly involved
parties<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>Note that judges need to
arbitrate not only between the involved parties, but must also consider the
public interest, if the result of the decision by the judge will create a
jurisprudence affecting the applicability of the terms negotiated in other
contracts or licenses (or other forms of agreements), between other third-parties
not currently directly related to the litigation but that need to be defended indirectly
(as part of the “public” interested in such trial in which they can’t
be represented); that’s why trials between two direct parties involved in
a litigation also include a third one representing the public, defended by its
own lawyers but with costs supported by the public; this is also a good reason
why the abuse trials or juridical procedures is punishable by law, as this generates
costs for the public for its defence, i.e. costs for everybody not directly involved
in the litigation, but concerned by the jurisprudence that a public and applicable
justice decision will create).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>The “public”
interests, defended in a trial using governmental funding (potentially large
but not infinite!) is something that helps balancing the difference of power
between “large” and “small” parties (because the large
party also needs to defend its position face to the public), so that small
parties don’t necessarily need to resign (but they must evaluate if the “public”
third-party, defending itself only using the terms of existing laws, without
reference to the terms of private contracts or licences or agreement in
litigation, will help the small party defend its position; and the small party
must also evaluate the consequences of loosing the trial, if the “public”
does not want to defend its cause, as it may have to support not only a
significant part of the justice costs supported by its opponent, in addition to
the costs for its own defence, but also the costs supported by the defence of
the “public” interests, plus the possible fines that a judge may
decide against the looser for “abuse” of juridical procedures if
the small party was the initiator of the trial, a fourth supplementary risk that
may be easier to support by large parties than by small parties, where the “public”
does not care if the smaller party has to cease all its activities due to the
decision).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>So effectively, in a
litigation between a large organization and small party, the “public”
third-party in a trial still tends to defend the interests of the largest party
involved, as it minimizes the indirect consequences for the “public”!
In other words, the largest organizations have the power to influence a lot the
jurisprudence in their favour (and that’s why they regularly abuse the justice
system, and make large profits, by forcing others to resign instead of
defending their case in a trial). If you are small, the only safe way to defend
yourself against a large corporation is to create a group action: that’s something
that exists in US, but still not in Europe where the largest organizations are constantly
abusing the legal systems. Instead, the smallest parties need to find an
association accepting to defend their cause, but the associations MUST also
collect individual proofs of concerns from each of their interested members.<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>I’ll take a significant
example:<o:p></o:p></span></font></p>
<ul style='margin-top:0cm' type=disc>
<li class=MsoNormal style='color:navy;mso-list:l0 level1 lfo2'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>In a recent litigation (judged last year) between the three largest
French mobile phone companies and their consumers (related to abusive
billing practices), the consumers could not defend directly their cause,
but had to sign an individual agreement with the association defending
their cause, and to expose not only their evidences (proof of abusive
billings, copies of their contracts, proofs of payment…) but also making
them become DIRECT parties to the trial, even though they would not defend
their case themselves. So their individual proof of identity was needed,
and the 3 major Telcos had to defend their case against only TENS OF
THOUSANDS of defendants (so the Telcos had the complete list of consumers),
despite their abusive contracts was affecting equally MILLIONS of
customers.<o:p></o:p></span></font></li>
<li class=MsoNormal style='color:navy;mso-list:l0 level1 lfo2'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>And the result of the decision (in which the Telcos have lost, many
thanks to the judges for that!) did not affect the millions of customers
that were NOT defended by the “public” interest: it only
created a jurisprudence, and the millions of French mobile phone customers
that did not participate to the trial still need now to defend their case
isolately by starting once again a new juridical procedure based on this
jurisprudence. So now, if the other consumers do not start a legal action
within a limited time after the trial decision, all the past abuses by the
Telcos against them will become legal and non-refundable.<o:p></o:p></span></font></li>
<li class=MsoNormal style='color:navy;mso-list:l0 level1 lfo2'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>Such thing would not have happened if a group action had been
possible, in such a way that the “public” party would have
been directly involved as part of the group action, so that the
consequence of the justice decision would have been that ALL customers would
have received the compensations for the abusive billings made by the three
major French mobile Telcos.<o:p></o:p></span></font></li>
<li class=MsoNormal style='color:navy;mso-list:l0 level1 lfo2'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>Instead, after the trial, the government had to vote a law and
force these Telcos to extend the jurisprudence to all their customers for
the future.<o:p></o:p></span></font></li>
<li class=MsoNormal style='color:navy;mso-list:l0 level1 lfo2'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>But no retroactive compensation was possible for the past abuses by
the Telcos, that had abused their dominant position during many years (as
recognized by the justice decision, but not by the new law), despite of past
countless protests by consumers, and countless procedures in which they
could not defend correctly and they most often had to resign long before
waiting the decision<o:p></o:p></span></font></li>
</ul>
<ul style='margin-top:0cm' type=disc>
<li class=MsoNormal style='color:navy;mso-list:l1 level1 lfo1'><font size=2
color=navy face=Arial><span lang=EN-GB style='font-size:10.0pt;font-family:
Arial'>The collective juridical action by associations of consumers was
becoming urgently necessary last year, because the many individual actions
in which the consumers were not defending their case correctly (or could
not support the financial cost of their actions, to defend themselves
correctly) was progressively creating a dangerous jurisprudence in favour of
the large Telcos (notably because the French courts are notoriously
flooded with many cases that must be judged very fast after very long time
waiting for the decision); the jurisprudence created would have been tolerating
the countless “minor abuses” and transforming such “tolerance”
into legality, and source of profits for the largest Telcos, even if their
behaviour was clearly abusive and against existing laws!<o:p></o:p></span></font></li>
</ul>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>Such concerns is not
limited to Telcos, but to any large domain (generating huge amounts of
financial transactions or revenues) in which the market is significantly dominated
by a few major providers (Microsoft is in such a position, worldwide, and it’s
even very difficult now for a single government to defend its position or the
interests of their “public” (as seen in US, where there are even
conflicts of interests, and a powerful lobbying of Microsoft in favour of those
that can influence laws, against the jurisprudence normally created in favour of
the public).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>As far as I know, the
Berkeley University is not in such a position that even the government cannot
defend the public interests, or still help the University defend their
legitimate rights. The risks in a trial are much lower, including for the
University itself. The Berkeley University does not play in the same stadium (or
battlefield) as Microsoft (powerful enough to defend its case and win easily against
almost any single government, that will most often resign!). Instead, the
governments need to join their actions (that’s why we see now legal actions
against Microsoft being judged in international Courts of justice, or why in US
such trials at the state level are failing or not applicable elsewhere, and are
being driven at the federal level and even the public party is campaigning for
getting direct help from more involved parties).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>So the current very
active protection of the Microsoft trademark by Microsoft itself is something
that should not be considered negligeable. Things that may seem trivial to
defend today, in a first approach, could reveal to be extremely costly to
defend later, and that’s why we should ask to Microsoft to be extremely
explicit in its licences about its intents. I don’t think that requesting
to Microsoft to include a clear statement about the correct way to refer to its
licence is something unreasonable, and if Microsoft has difficulties to accept
it, then some hidden intentions can be feared and the licence should be
perceived as potentially dangerous (remember the public comments made by
Microsoft supporters about the “viral” nature of the GPL, incorrectly
stating that the FSF had hidden intentions or was stealing IP rights owned by
others, or accusing it of supporting socialism or leftist positions against
freedom of market, when in fact all the FSF goals were publicly disclosed and
explained to who ever asked that the GPL was not made to prohibit the commerce
or to take the IP rights detained by others without their explicit consent).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>If we want “fair”
competition, we do need that proprietary licences, as well as “open”
licences (approved by OSI) and “free” licences (compatible with the
GPL) get exactly the same very strong level of protection for the clauses that
are present in each of them,and that these clauses be equally applicable. Nothing
more, nothing less.<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>There’s little
thing we can do for enforcing the precious “<b><span style='font-weight:
bold'>public domain</span></b>” (because it only exists “<b><span
style='font-weight:bold'>by default</span></b>”, within the terms of locally
applicable laws but outside of the terms of any license or contract), except
campaigning in each country for protecting (or extending) the existing laws
that created and protected this public domain; so that it would benefit of this
legal protection (the public domain is also extremely precious because it is
the vehicle of most the humane culture, and transmits most of our knowledge,
and benefits collectively to the whole humanity for its education and progress
of civilisations, and also benefits to every commercial organization that can
use it equally).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>Unfortunately, we’ve
seen some countries recently starting to reduce the field of the public domain
causing major damages in the public and in existing commercial organizations already
using or depending of some parts of it (now these are exposed to trials for infringements
of various IP rights, notably in Russia where such laws have been passed, even with
some retroactive effects!).<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'>So even if a right is trivial
to defend, because it is *<b><span style='font-weight:bold'>currently</span></b>*
part of some public domain conceded by law, and then considered implicit in a
license, it is not completely useless to reaffirm these rights in some short
clause of a license (even if the law changes, the granted right remains unforceable);
this costs nothing for the existing right holder according to the existing law,
so it’s not unreasonable to ask it (unless the right owner has hidden
intentions and wants to campaign later to change the existing jurisprudence by initiating
legal actions where it will be “testing” these implicit rights, or wants
to start lobbying at governmental level to change the laws and in that case a public
declaration about the intent of the submitter is also not useless…)<o:p></o:p></span></font></p>
<p class=MsoNormal><font size=2 color=navy face=Arial><span lang=EN-GB
style='font-size:10.0pt;font-family:Arial;color:navy'><o:p> </o:p></span></font></p>
<div style='border:none;border-left:solid blue 1.5pt;padding:0cm 0cm 0cm 4.0pt'>
<div>
<div class=MsoNormal align=center style='text-align:center'><font size=3
face="Times New Roman"><span style='font-size:12.0pt'>
<hr size=2 width="100%" align=center tabindex=-1>
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<p class=MsoNormal><b><font size=2 face=Tahoma><span style='font-size:10.0pt;
font-family:Tahoma;font-weight:bold'>De :</span></font></b><font size=2
face=Tahoma><span style='font-size:10.0pt;font-family:Tahoma'> Chris Travers
[mailto:chris.travers@gmail.com] <br>
<b><span style='font-weight:bold'>Envoyé :</span></b> dimanche 30
septembre 2007 21:18<br>
<b><span style='font-weight:bold'>À :</span></b> License Discuss<br>
<b><span style='font-weight:bold'>Objet :</span></b> Re: For Approval:
Microsoft Permissive License</span></font><o:p></o:p></p>
</div>
<p class=MsoNormal><font size=3 face="Times New Roman"><span style='font-size:
12.0pt'><o:p> </o:p></span></font></p>
<p class=MsoNormal style='margin-bottom:12.0pt'><font size=3
face="Times New Roman"><span style='font-size:12.0pt'><o:p> </o:p></span></font></p>
<div>
<p class=MsoNormal><span class=gmailquote><font size=3 face="Times New Roman"><span
style='font-size:12.0pt'>On 9/30/07, <b><span style='font-weight:bold'>Philippe
Verdy</span></b> <<a href="mailto:verdy_p@wanadoo.fr">verdy_p@wanadoo.fr</a>>
wrote:</span></font></span><o:p></o:p></p>
<p class=MsoNormal><font size=3 face="Times New Roman"><span style='font-size:
12.0pt'>Chris Travers [mailto:<a href="mailto:chris.travers@gmail.com">chris.travers@gmail.com</a>]
wrote:<br>
> That is exactly what will happen if dislike of the source of a license is<br>
a factor in its approval.<br>
<br>
Here again you continue to misread what I said. The "dislike" of a
source is <br>
not addressed in what I said, I thought I had been clear enough. I just<br>
spoke about the applicability of users' rights and obligations, i.e. the<br>
existence of unwritten, unexplicited clauses in the license, that can <br>
severely weaken their applicability to users, i.e. (unwritten) *implicit*<br>
rights and *implicit* requirements (that do exist just because one of the<br>
parties may think that these rights or obligations are protected by their <br>
national law, or implied by the terms used in the licence, or by the actual<br>
coverage of meaning of the term "licence").<o:p></o:p></span></font></p>
<div>
<p class=MsoNormal><font size=3 face="Times New Roman"><span style='font-size:
12.0pt'><br>
<br>
Do you think the OSI should rescind approval of the "New BSD"
License which has a similar clause? <br>
<br>
If not, why should it be OK in that license, but not in the MS-PL license?<br>
<br>
Best Wishes,<br>
Chris Travers<o:p></o:p></span></font></p>
</div>
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<p class=MsoNormal><font size=3 face="Times New Roman"><span style='font-size:
12.0pt'><o:p> </o:p></span></font></p>
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