<quote who="Andrew Suffield" date="2005-03-28 01:43:54 +0100"> > On Sun, Mar 27, 2005 at 12:50:15PM -0500, Benj. Mako Hill wrote: > > > My wife says about debian-legal, "It sounds like you are the white > > > hat hackers of Free Software licenses. You find the security holes > > > in the licenses before the bad guys do." I thought that this was a > > > pretty good analogy. People get real mad at white hats, too. It's > > > not nice to be told that your software has a bug, nor that your > > > license does, but it's a necessary function. > > > > Absolutely. As I said to Andrew, I think it also helps to remember > > that this isn't the same as source code and the the nature of bugs > > is somewhat different. It's, for lack of a better word, > > fuzzier. Contracts are interpreted by people and, ultimately, by > > people who are judges and things like reasonable expectations, > > intent, and good/bad faith that don't make sense in the source > > code metaphor are central aspects in law and licensing. I think we > > are sometimes guilty of giving these less weight than we should. > > We *can't* give serious consideration to that sort of thing. It is > precisely because these issues are fuzzy that we can't afford to. As > soon as you start saying "This might be non-free, but it's okay, you > might be able to get out of it anyway" then what you're also saying > is "You are going to have to go to court if you want to exercise the > things enumerated in the DFSG, and you might lose". Well, that's not what I'm saying at all. I think that the chance of this going to court every is next to none. I think that the chance of it going to court and lasting more than a day in front the judge are next to next to none. I'm saying that there are cases where (a) we know the license was written to say a certain thing (b) the text of the license is clumsy and *might* be interpreted to mean something else (c) we can be confident that alternate interpretation would not be seen as fitting reasonable expectations in the opinions of courts/judges (d) that alternative interpretation is not known to be held by anybody using the license or the authors of the license. I think in those cases, we can go ahead and optimize for the common -- hell, the *only* -- case rather than throwing everything out because of what we fear might happen if licensors start acting maliciously en mass and judges stop paying attention to central aspects of contract law. > It's not free if you have to fight a court battle to do it. Those > things cost a fortune. We have legal counsel. We can remove a work before we sued or ever have to go to court when we know the copyright owner is getting creative with their interpretation of the license. We have reason to believe that everyone using the license now thinks the clauses are free in the way we need them to be. But are you really saying that we're going to have to go court to argue that the part of the CC webpage that is *explicitly* not part of the license is part of the license? Or that the license is barring private distribution? The authors of the license and everyone who know who uses it understands these one way that is more than an equally valid interpretation than the apocalyptic scenario we seem to be optimizing for. Besides, we can't stop other people from taking us to court. If people want to be unreasonable about the way they interpret licenses, they can do it with *any* license. What we can and should do is not include software when we have reason to believe that we'd be using it under terms other than what the licensor would approve of or when the terms, as they interpreted by the copyright holder, are non-free. Requiring a known free license issued by the copyright holder is a damn good way to do this and I support it (of course). I'm not saying we should just start accepting any license in the grey area (or even this licenses and I think has some unambiguously non-free bits); I'm saying that there is nothing but a grey area. Ultimately, this is all going to interpreted by people and we need to choose licenses that could not be *reasonably* interpreted to mean that they are non-free. Intent and reasonable expectations *are* part of that at every stage -- not just in courts. > This is particularly true because the license can invariably be > easily rewritten to eliminate the fuzziness. Yes. That's always better. But it doesn't always happen and I'm not happy tossing out any chance of more than what could be up a million CC works if it comes down to these two clauses that we know are meant to be free, that everyone licensing the works seems to think are free, and that I am comfortable saying that no judge would rule mean anything other than free. Regards, Mako -- Benjamin Mako Hill mako@debian.org http://mako.yukidoke.org/
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