[License-review] veto against Unlicense

Langley, Stuart Stuart.Langley at disney.com
Sat May 16 22:30:23 UTC 2020

Josh Berkus wrote:

> So, two things:
> 1. The Unlicense is already in wide use, as opposed to proposed but new
> licenses
> 2. YOU ARE NOT AN ATTORNEY, and no amount of arguing on this list can
> make you one.
> The attorneys on this list seem to be satisfied that, contrary to your
> position, the Unlicense does not expose downstream users to criminal
> charges.  If you want to dispute that, you need to get a *legal* opinion
> that says otherwise.  Not YOUR opinion, which to be blunt, doesn't count
> because you are not an expert.
> So -- get an attorney, or please be silent. You have made your
> arguments.  Making them repeatedly in 800 different emails does not make
> them any more true than they were the first time.
For what it is worth, I am an attorney and I share some but not all of the stated concerns of the Unlicense.  I am not concerned of criminal charges or felony convictions from a practical standpoint.  The PD dedication is clear enough that I doubt a court would find that an infringer had the necessary intent to have committed a crime (but I'm not a German or EU, or even a US criminal attorney, so that is just my opinion).  However, you don't always need that intent to prove a civil violation.

In my opinion its uncertain whether a court would treat it as a license.  Reasonable minds disagree.  It's more likely that a court would look at the intent of the dedicator, but because the Unlicense is written rather poorly there remains a non-remote chance it would be treated as just a failed transfer and leave the dedicator, but more likely their heirs, with a right to sue in some jurisdictions.  I could argue either side, but from a practical standpoint, that non-remote chance is enough that I do not advise clients to distribute software under the Unlicense.  

Pragmatically, if I end up in court to settle an uncertainty, I've already lost.  I may win on the merits, but that is not cheap.  If a license does not give me certainty that I won't have to go to court to defend myself, it's not a worthwhile license.  Similarly, I would never advise a client to sign a commercial license that did not have conventional, well-trodden language of license such as "Licensor grants X rights...."

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