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<div class="moz-cite-prefix">On 2/24/2025 9:05 PM, Pamela Chestek
wrote:<br>
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<div class="moz-cite-prefix">On 2/24/2025 10:15 AM, Carlo Piana
wrote:<br>
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cite="mid:1688767557.11087695.1740420949313.JavaMail.zimbra@piana.eu">
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<p>Given that I believe the intent and actual effect of the
language of AFL & OSL -- as well as the actual effect of
the language in MGB 1.0 under current law -- would be to
encompass equivalents, this submission raises an interesting
question on license text vs license intent and approval of
licenses. The patent grant of AFL & OSL has already been
approved, and MGB 1.0 attempts to use that same language in
its own grant.* Specifically, can the parol evidence of the
intent of the licensor in drafting language in a license be
considered in both the decision to approve or disapprove of
a license, or for that matter in interpreting the license
itself later when it is used? I tend to think if a license
submitter submits a license with language that under
prevailing law does not violate the OSB (and which has been
approved in the past as complying with the OSB), but the
licensor in submitting the license says they intend for the
license text to violate the OSD, the intent should play into
approval even if the text itself doesn't effectuate the
intent. Which in this case, as I've said before, the intent
to carve out DoE from the license in my opinion violates OSD
and makes this license non-approvable, even if the language
which purportedly accomplishes that intent has previously
been approved.</p>
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<div>This is a recurrent item of discussion. I submit that in a
standard license, the intent of the drafter bears little to no
weight in the interpretation of a legal instrument that is
offered for the use of the many. It has little bearing also in
a situation where it is being used only by the drafter. In any
cases, being a matter of interpretation, which is heavily
impacted by the relevant rules of the applicable law, it would
be disingenuous by anyone to attempt any such interpretation,
especially in the absence of an interested counterpart.
Therefore, we, and the Licensing committee first and foremost,
should interpret the license for what it says and according to
the general understanding of similar wording, if there is a
customary use of it in the trade. But the intent, both pro o
against the OSD, should in principle not be considered, unless
-- and this is a notable exception -- if it is expressly
stated that one sought goal is against the OSD. Which
includes carving out any rights which, under any legal theory
or instrument, is required to fully exploit the grant and do
Open Source. I long time ago have been guilty of attempting to
do so, and I have long since repented of my nefarious deeds.</div>
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<div>Despite we concentrate on legal text (maybe with an
hammer-nail attitude), the main purpose of clearing a license
is to certify that the text under scrutiny is a legal
instrument that enables the obstacles coming from of "all
rights reserved" default as well as from other potential
obstacles coming from other instruments; so that the recipient
is allowed to use of the freedoms that need to be granted.
The scope of the licensing approval, in other words, is IMHO
that of making sure that the software **is** Open Source, not
that the license is compliant (the OSD is a means to an end).
The software is Open Source if the distribution artifact
grants everything that legally is required and if it provides
everything that technically is necessary to use, study and
modify, make copies and distribute original or derivatives.
Anything that does limit or purports to limit the Open
Source-ness of the software (as opposed to imposing conditions
to foster it) is aiming short of Open Source and should be
rejected because it falls short the most important test.</div>
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<p>I think we agree? I'm less inclined than you to trust the
language of the instrument because language is so imperfect. But
you make allowances for the case where the intended goal is
against the OSD, which seems to be this case. I am wary of
giving a license our blessing where the license steward believes
they have not granted all rights necessary (even when their
interpretation doesn't seem to comport with existing law). I
think we have a duty to protect the users who will not have seen
this discussion and therefore learned that the licensor thinks
that some of its patent rights have not been licensed -- if they
knew, they surely would not use the software. I think the
reasoning is even more compelling here where the license is
meant to be essentially the same as the Apache license, that it
it's a redundant license, but for the change to the patent
language. <br>
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<p>Two more thoughts - in the US, this colloquy might be admissible
in court to determine the meaning of the license. It's possible
that a court could see that the drafter's intent was not to grant
patent rights and conclude that it hadn't.</p>
<p>I also think it's a bad precedent for the OSI to approve a
license where we know the licensor's intent is not to grant all
rights necessary. We don't have stare decisis, but we strive for
consistency and it's always challenging to explain inconsistency
to license submitters.</p>
<p>Pam<br>
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cite="mid:6e29c5c6-d6af-c40b-6da8-b868017a1a16@chesteklegal.com">
<p> </p>
<p>Pam<br>
</p>
<div class="moz-signature">Pamela S. Chestek (in my personal
capacity)<br>
Chestek Legal<br>
PLEASE NOTE OUR NEW MAILING ADDRESS<br>
4641 Post St.<br>
Unit 4316<br>
El Dorado Hills, CA 95762<br>
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pamela@chesteklegal<br>
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href="http://www.chesteklegal.com" moz-do-not-send="true">www.chesteklegal.com</a></div>
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