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Re: Open Software License v2.1

On Tue, Sep 14, 2004 at 06:59:29PM -0400, Glenn Maynard wrote:
> On Tue, Sep 14, 2004 at 10:53:55PM +0100, Andrew Suffield wrote:
> > This whole "consensus" nonsense is just an excuse to discard any
> > argument without responding to it. Note how it is only ever advanced
> > by people who want to discard valid arguments; it is never used by
> > people who want to introduce one.
> Freeness questions are not black and white.  Rational people can
> disagree on whether a given restriction is free, due to differences in
> personal judgement and values, and they can agree on whether it's free
> but arrive at the conclusion for different reasons.  When there are
> multiple rational answers, consensus helps choose among them.  If there
> was no room for rational disagreement, this list would have a much easier
> job.

That doesn't mean "no consensus" is an excuse to discard them all. If
it means anything, it means that thing has to stay the hell away from
the archive.

Furthermore, it's entirely irrelevant when there's only one rational answer.

> Further, the case of "terminating copyright licenses based on patent
> action specifically against the work" just hasn't been discussed properly.

I dispute that. We've seen these before and there was little to discuss.

Long-standing conclusions, summarised:

Terminating licenses (copyright, patent, trademark, dog-humping, or
whatever else might interfere with distribution/modification/use) for
any reason other than non-compliance is a bit of legal insanity to get
contract-like provisions into a license. These provisions have to be
considered like any other restriction (invert the sense of the
conditional to get the restriction).

Anything that requires a contract-like construct, rather than a simple
license, is probably non-free. DFSG-free licenses give things to the
licensee, not to the copyright holder. They are not a trade (although
the grant of permissions does not have to be the most generous
possible), even if their social behaviour resembles one.

(Corollary of these two: terminating a license for any reason other
than non-compliance is probably non-free)

A restriction saying "You may not sue me for patent issues" is

Patent licenses are ignored unless there are actively enforced
patents. In almost every case where we come across these patent
clauses, there are no actively enforced patents, so we simply ignore
them - but sometimes people write clauses like this one, which remain
non-free in the absence of patents.

I do not believe we have ever encountered a scenario where there were
actively enforced patents and we were offered something resembling a
free software license for the patents.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
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