Subject: RE: DRAFT FAQ: Free vs. Open
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 11 Jan 2008 13:09:05 -0800

John Cowan wrote:
> Beware of talk of "deeming", Larry.  (I was just dealing with
> this in another context.)  Eben Moglen plainly tells us at
> http://emoglen.law.columbia.edu/publications/fict.html :
<snip>

I don't worship in Eben's cathedral, even as to the implications of the word
"deeming". I'll take deeming to court most days, especially when we don't
know precisely what X or Y actually are, and even [as we've seen here in
recent days] the acolytes of the various cardinals don't know what the words
really mean. :-)

/Larry



> -----Original Message-----
> From: John Cowan [mailto:cowan@ccil.org]
> Sent: Friday, January 11, 2008 12:59 PM
> To: Lawrence Rosen
> Cc: 'License Discuss'
> Subject: Re: DRAFT FAQ: Free vs. Open
> 
> Lawrence Rosen scripsit:
> 
> > By the way, regarding the basic question, I find it comforting that all
> > of FSF's *free* licenses are (or soon will be) deemed to be open source,
> > and a growing number of OSI-approved *open source* licenses are deemed
> > to be compatible with FSF's new licenses. We've all mellowed somewhat,
> > and we're all ethical.
> 
> Beware of talk of "deeming", Larry.  (I was just dealing with
> this in another context.)  Eben Moglen plainly tells us at
> http://emoglen.law.columbia.edu/publications/fict.html :
> 
> 	In the technique of deeming we find the conscious expression
> 	of the fictional nature of the subject matter, for when X is
> 	"deemed" to be Y it is ordinarily conceded that X is not Y,
> 	and is known not to be Y.
> 
> But he does add a mitigating footnote:
> 
> 	Though in this context one is tempted to recall the position
> 	of that acute, though fictional, jurist Lord Mildew, who said:
> 	"There is too much of this damned deeming." Travers v. Travers,
> 	noted in A.P. Herbert, More Uncommon Law 80 (1982).
> 
> --
> He made the Legislature meet at one-horse       John Cowan
> tank-towns out in the alfalfa belt, so that     cowan@ccil.org
> hardly nobody could get there and most of       http://www.ccil.org/~cowan
> the leaders would stay home and let him go      --H.L. Mencken's
> to work and do things as he pleased.              Declaration of
> Independence