Subject: RE: A prototype License Wizard up and running
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 8 Apr 2005 22:57:31 -0700

Bruce Perens wrote:
> This discussion would go faster if provided an argument rather than
> simple contradiction, since you know what I was asking about.

OK, Bruce. See http://rosenlaw.com/Rosen_Ch06.pdf.

I have never said that the GPL was unenforceable. I have said that there are
ambiguities in the GPL that make it difficult to know exactly how a court
would deal with such things as patents, or that would make it difficult to
apply contract law to its interpretation. I am on record encouraging the use
of more precise and clearer licenses (including, yes, the Open Software
License (OSL)). But to conclude from what I've said that "Larry doesn't feel
that the GPL's reciprocal terms would hold up in court" is going way too
far. 

I also never said that "the GPL terms regarding 'linking' were nonsense."
The GPL has no terms regarding linking. The only place in the entire GPL
that even uses the work "link" is a reference at the end of a non-binding
section entitled "How to Apply These Terms to Your New Program," and that
reference is simply a pointer to the LGPL. The debate about linking comes
primarily in commentary by the GPL's authors and others, which is
interesting but not likely to be interpreted as a binding license provision
that the courts would enforce.

As I tried to say in my book (reference chapter above), I do not believe
that linking to a library in the way that the library was designed creates a
derivative work of that library. I do not believe the GPL or LGPL -- or any
other licenses that leave that point ambiguous or that rely on the Copyright
Act definition of "derivative work" -- will be interpreted by the courts in
such a draconian manner.

If you want a license "with reciprocal terms that bind tightly enough to
apply to an application that links to a library with those terms," then I
suggest you write a license that makes that point absolutely clear. I didn't
want the OSL to be interpreted that way, which is why I worded its
reciprocity condition (section 1(c)) as I did. 

> I am
> not going to recommend to any customer that they set a course that might
> eventually include having to impeach your testimony about your own
> license.

Here's what I said on page 120 in my book, in the chapter on the GPL: "Under
the law, only the common understanding of a licensor and his licensees
matters, as reflected in the written terms and conditions of the license
agreement between them. It is Linus Torvalds, and the thousands of other
licensors under the GPL, who have standing under the law to assert their
interpretations of the GPL, not the Free Software Foundation (except for
that software for which they own the copyrights). And it is a judge who
would ultimately decide such an issue if it reaches that level of
conflict.... It is up to the authors of the GPL to make their license clear,
not up to licensees to seek outside guidance to interpret it...."

So when I said in my email to you that "I'm not the sole interpreter of the
meaning even of my own words," I was suggesting that my interpretation of
the OSL is as relevant as Richard Stallman's interpretation of the GPL --
not very relevant at all. The specific words we wrote in our licenses will
stand on their own. If you think our licenses are ambiguous, or if you want
your license to be clearer than those other licenses are, it is up to you to
write a clearer license that meets your needs.

I am sorry that you "scrapped a section of the paper that would have
recommended the OSL and AFL as an alternative track to the GPL,
GPL-with-exception, and BSD." I happen to believe that the OSL is clearer
and less ambiguous than the GPL or LGPL, but you're free to draw your own
conclusions. I hope you'll reconsider based upon your own reading of the
plain language of the license rather than any outside interpretation I might
give of it.

Best regards,

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  ●  fax: 707-485-1243
Author of “Open Source Licensing: Software Freedom 
               and Intellectual Property Law” (Prentice Hall 2004)
 

> -----Original Message-----
> From: Bruce Perens [mailto:bruce@perens.com]
> Sent: Friday, April 08, 2005 3:02 PM
> To: lrosen@rosenlaw.com
> Cc: 'John Cowan'; license-discuss@opensource.org
> Subject: Re: A prototype License Wizard up and running
> 
> Lawrence Rosen wrote:
> 
> >Yes I do.
> >
> >
> This discussion would go faster if provided an argument rather than
> simple contradiction, since you know what I was asking about. But since
> you insist: I need a license with reciprocal terms that bind tightly
> enough to apply to an application that links to a library with those
> terms. My impression from our recent communication while I was writing
> this paper was:
> 
> 1. That you did not believe your license applied that way.
> 2. That you felt the GPL terms regarding "linking" were nonsense.
> 
> Because of #1, I scrapped a section of the paper that would have
> recommended the OSL and AFL as an alternative track to the GPL,
> GPL-with-exception, and BSD.
> 
> >I'm not the sole interpreter of the meaning even of my own words. No
> attorney is.
> >
> >
> I have to navigate my customers around enough ambiguities as it is. I am
> not going to recommend to any customer that they set a course that might
> eventually include having to impeach your testimony about your own
> license.
> 
> Thanks
> 
> Bruce