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<div class="moz-cite-prefix">On 5/6/18 9:45 AM, Carsten Gerlach
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:d0500b58-4c2c-c0b4-a9f9-bb0bde05a636@tcilaw.de">
<blockquote type="cite" style="color: #000000;">
<pre class="moz-quote-pre" wrap="">The actual effect of the terms is to guarantee that whatever
license is used, the ESA Permissive PL 2.3 license is still available as
an <i class="moz-txt-slash"><span class="moz-txt-tag">/</span>alternative license<span class="moz-txt-tag">/</span></i>, and the downstream licensor has to make a
notice to that effect.
And thus, I'd suggest that you state the actual text of the notice the
poor un-counseled Open Source developer has to make in that case. Here's
my suggested rewrite:
</pre>
</blockquote>
<pre class="moz-quote-pre" wrap="">This would indeed be helpful, but to achieve this, we would prefer to
suggest a notice text in the license FAQ.
</pre>
</blockquote>
Carsten,<br>
<br>
Several times you mentioned changing the FAQs rather than amending
the language of the license itself. As a US lawyer, this is
troubling to me because under US law (1) an explanation extrinsic to
the license would only be considered under very limited
circumstances and (2) even if it was considered, it is only the
Licensor's intent, not the license <i>steward's </i>intent that
matters. So where the licensor is not the ESA, any statements by the
ESA would be irrelevant. <br>
<br>
I understand, however, that this license will be construed under the
law of a member state of the EU, not US law. How would information
in the FAQ be used to construe the meaning of the license under EU
law?<br>
<br>
One place I believe you hope to rely on the FAQ rather than changing
the license (although I can't find your email that says it) is in
Section 7.1 regarding when one has "knowledge" that exercising the
rights granted by the License infringe third party rights. You
stated that "'knowledge' should mean positive knowledge of an
infringement, for example if the user is subject to infringement
claims himself, has positive knowledge of infringement claims
against a third party or if the user’s own intellectual property
rights are being infringed.<a class="moz-txt-link-rfc2396E" href="http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2017-January/002961.html.Idon'tknowwhyyouconsiderthistobethemeaningoftheword">"
http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2017-January/002961.html.
I don't know why you consider this to be the meaning of the word
"</a>knowledge." Given that failure to comply with 7.1 may mean loss of
the license, this seems to be a draconian outcome for what may be,
for example, just an internal conclusion that a patent may be
infringed.<br>
<br>
Thanks,<br>
<br>
Pam<br>
<br>
Pamela S. Chestek<br>
Chestek Legal<br>
PO Box 2492<br>
Raleigh, NC 27602<br>
+1 919-800-8033<br>
<a class="moz-txt-link-abbreviated" href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a><br>
<a class="moz-txt-link-abbreviated" href="http://www.chesteklegal.com">www.chesteklegal.com</a><br>
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