Re: Custom license conditions and grant for Wordplay package

[Ben Finney <bignose@debian.org>]

Ben Finney <bignose@debian.org> writes:

> =====
> ------------------------------------------------------------------------------
>
> Wordplay Version 7.22     Evans A Criswell   03-20-96
>
> ------------------------------------------------------------------------------
>
> This program was written for fun and is free.  Distribute it as you please,
> but please distribute the entire package, with the original words721.txt and 
> the readme file.  If you modify the code, please mention my name in it as the
> original author.  Please send me a copy of improvements you make, because I
> may include them in a future version.
>
> I may be contacted by email at criswell@cs.uah.edu
>
> Evans A Criswell
> Research Associate
> Computer Science Department
> University of Alabama in Huntsville
> Huntsville, AL  35899
>
> ------------------------------------------------------------------------------
> =====

There is a significant ambiguity in this text, and I'm pretty sure we
would find it problematic if this work were submitted today.

The ambiguity is: What is the effect of “please do foo” in the context
of a copyright license grant?

* If the formulation “please do foo” is an unenforcible *request* to do
  foo, then there are no conditions in this grant. Under this
  interpretation, the legal effect is entirely in “Distribute [this
  program] as you please”.

* If the formulation “please do foo” is an enforcible *condition* on the
  grant, then there are several such enforcible conditions that make
  this work non-free:

  * There is no permission granted to modify the work as the recipient
    pleases and to redistribute that modified work (instead, this is
    conditional on “distribute the entire package […]”). This fails
    DFSG§3.

  * There is an explicit clause preventing redistribution of parts of
    the work. This fails DFSG§1 and DFSG§3.

  * There is an explicit requirement that the person redistributing must
    send a copy to a specific party. This therefore fails DFSG§1 and
    DFSG§3. (See the thought experiments at
    <URL:https://people.debian.org/~bap/dfsg-faq.html> for why.)

So it seems that the only way this work can be considered free is if we
take all the “please do foo” as mere unenforcible requests that don't
place any restriction on the recipient.

I don't know whether a copyright case would be decided that way by a
judge; it seems at least likely that a judge would take “[grant of
permission], but please [do foo]” as an expression of the copyright
holder's intent to restrict the license grant.

-- 
 \       “I bought some batteries, but they weren't included; so I had |
  `\                                to buy them again.” —Steven Wright |
_o__)                                                                  |
Ben Finney