[License-review] ESA Permissive PL 2.3

[Pamela Chestek]

On 5/6/18 9:45 AM, Carsten Gerlach wrote:
>> 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/alternative license/, 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:
> This would indeed be helpful, but to achieve this, we would prefer to
> suggest a notice text in the license FAQ.
>
Carsten,

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 
/steward's /intent that matters. So where the licensor is not the ESA, 
any statements by the ESA would be irrelevant.

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?

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." 
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 
"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.

Thanks,

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
+1 919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
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