On Thu, Jul 01, 2004 at 02:38:46AM +0100, MJ Ray wrote:
> On 2004-06-30 23:05:08 +0100 Branden Robinson <branden@debian.org>
> wrote:
>
> >suggest that any license which attempts to prohibit that which would
> >otherwise be legal is non-free by definition.
>
> I think this would actually bring debian closer to FSF's position:
Gosh, that could be a real liability, given the frothy types who already
accuse members of our project of trying to be "holier than Stallman"[1] and
of being "fringe fanatics"[2].
On a more serious note, thanks for pointing that out. The unfortunate
GFDL situation has done a lot to obscure the very great deal that Debian
and the FSF have in common.
> IIRC, if it requires a contract to be formed, there needs to be some
> sort of consideration from licensee to licensor in exchange for the
> permissions.
That's true as far as I understand U.S. contract law, which isn't very.
> Could that consideration arguably be called a fee and therefore this test
> would be a simple illustration of DFSG 1?
I think so. Let's review the legal meaning of "consideration".
From Bouvier's Law Dictionary, Revised 6th Ed (1856) [bouvier]:
CONSIDERATION, contracts. A compensation which is paid, or all inconvenience
suffered by the, party from whom it proceeds. Or it is the reason which
moves the contracting party to enter into the contract. 2 Bl. Com. 443.
Viner defines it to be a cause or occasion meritorious, requiring a mutual
recompense in deed or in law. Abr. tit. Consideration, A. A consideration of
some sort or other, is so absolutely necessary to the forming a good
contract, that a nudum pactum, or an agreement to do or to pay any thing on
one side, without any compensation to the other, is totally void in law, and
a man cannot be compelled to perform it. Dr. & Stud. d. 2, c. 24 3 Call, R.
439 7 Conn. 57; 1 Stew. R. 51 5 Mass. 301 4 John. R. 235; C. Yerg. 418;
Cooke, R. 467; 6 Halst. R. 174; 4 Munf. R. 95. But contracts under seal are
valid without a consideration; or, perhaps, more properly speaking, every
bond imports in itself a sufficient consideration, though none be mentioned.
11 Serg. & R. 107. Negotiable instruments, as bills of exchange and
promissory notes, carry with them prima facie evidence of consideration. 2
Bl. Com. 445.
3. The consideration must be some benefit to the party by whom the
promise is made, or to a third person at his instance; or some detriment
sustained at the instance of the party promising, by the party in whose
favor the promise is made. 4 East, 455;1 Taunt. 523 Chitty on Contr. 7 Dr.
& Stu. 179; 1 Selw. N. P. 39, 40; 2 pet. 182 1 Litt. 123; 3 John. 100; 6
Mass. 58 2 Bibb. 30; 2 J. J. Marsh. 222; 5 Cranch, 142, 150 2 N. H. Rep. 97
Wright, It. 660; 14 John. R. 466 13 S. & R. 29 3 M. Gr. & Sc. 321.
> >We should come up with a name for this test. Maybe the "Autocrat
> >Test"
> >or the "Dictator Test"? The copyright (or patent, or trademark)
> >holder
> >does not get to make up his or her own laws?
>
> I have been referring to these things as "enforcement-by-copyright".
> Maybe it's the "Private Laws Test"?
I still like "Dictator Test". Doesn't a Dictator get to make up his own
laws?
[1] Message-id: <20040408031603.GC10452@taz.net.au>
http://lists.debian.org/debian-vote/2004/04/msg00019.html
[2] Message-id: <20040428045520.GA10922@thunk.org>
http://lists.debian.org/debian-vote/2004/04/msg00205.html
--
G. Branden Robinson | One man's "magic" is another man's
Debian GNU/Linux | engineering. "Supernatural" is a
branden@debian.org | null word.
http://people.debian.org/~branden/ | -- Robert Heinlein
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