MPL, CDDL, patents and licencing

John Cowan jcowan at
Tue Feb 8 13:43:44 UTC 2005

Jason White scripsit:

> First, I apologize in advance if this post is off-topic. 

It definitely isn't.

> I can think of several alternative analyses that might be given of
> how to apply the qualifications in sections 2.1 (d) and 2.2 (d) to
> the grants in 2.1 (b) and 2.2 (b) in these circumstances, which give
> different results, but as I don't have a background in patent law and
> haven't researched any relevant case law I'll forego the speculation
> and just ask the question.

Welcome to the Twilight Zone, where case law is practically non-existent,
statutes are more confusing than helpful, and (more or less intelligent)
analysis and (more or less daring) speculation rule the world by default.

> I also notice that there is an asymmetry between the Initial Developer
> and Contributors in both the MPL and the CDDL in that only the latter
> are subject to the following provision (here quoting the CDDL version
> with the cross-reference omitted):
> "You represent that You believe Your Modifications are Your original
> creation(s) and/or You have sufficient rights to grant the rights
> conveyed by this License."

That's something that I complained about in my reviews of the CDDL as
unnecessarily asymmetric (and sure enough it became controversial), though
I agree with Rod that it's clearly implied.  Hackers don't like "implied";
they tend to analyze licenses as if they were code, and assume that
judges are as easily bamboozled as computers.

> In an article at the absence of disclosure requirements in
> the CDDL is criticized on the footing that it would allow an Initial
> Developer to release code under the licence which is known to be subject
> to third party claims that would be infringed by licencees who use or
> distribute the software.

Provided said I.D. is an idiot and doesn't mind committing fraud, yes.

> I must admit that I find the objection at Groklaw confusing
> to say the least.

Not confusing, merely insanely nitpicking and talmudistic.  See above.

> I note that unlike the OSL and MPL, the CDDL stands alone in excluding
> the contra proferentem principle of interpretation.

Actually, the MPL (as well as many other corporate-lawyer-written
licenses) does have such a provision: see the last sentence of Section 11.
I protested the inclusion of this in the CDDL as unfair and unnecessary,
again unavailingly.  (I should add that the people at Sun I dealt with
were sympathetic to my objections; it was Sun Legal that held firm on
some of them.)

I suspect (IANAL) that such language is unenforceable anyway in what is
after all (with the best will in the world) a contract of adhesion, being
intended precisely to protect members of the public against the unexpected
or un-obvious effects of clever drafting, and that if it is ever enforced
it will only be in cases where the effect is not in fact unconscionable.

If you have ever wondered if you are in hell,         John Cowan
it has been said, then you are on a well-traveled
road of spiritual inquiry.  If you are absolutely
sure you are in hell, however, then you must be         jcowan at
on the Cross Bronx Expressway.          --Alan Feuer, NYTimes, 2002-09-20

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