Subject: Re: STWL (spread the word license)
From: Bernhard Fastenrath <bfastenrath@mac.com>
Date: Wed, 22 Sep 2004 23:58:41 +0200

Ihab Awad wrote:
>>The intention of 3. and 4. is not to be legally enforceable but to
>>make it unmistakably clear that the described behaviour is required
>>by the license.
>  
> Things can't be both legal and non-legal. Either it is legally
> enforceable or it doesn't belong in a legal document.

My point of view is that legal enfoorcability is secondary to
a soound intentioon. The spirit of the contract is my primary
focus and legal enforcability is a minor inconvenience if
someboody is disregarding the spirit of the contract significantly.

What makes people who make money on interpreting contracts good
advisors in making contracts? Wouldn't you say that the complexity
of a contract can grow without perceivable limits if you make the
person who profits from contractual problems the one who can shape
the text of a contract?

>>It is left to your own judgment to decide who might
>>be interested in the software (3.) and who needs your help or whom
>>cou can help by answering questions (4.).
> 
> No, unfortunately, it is not -- and therein lies the rub. It is left
> to the judgement of whoever has standing to file suit. What if I take
> a STWL application X, make a trivial mod, then put it out on the
> Internet, and somehow find out about some people who are using it. I
> then get all my friends to totally spam these people and ask for
> "help" with the application. When these people don't pony up, I sue
> them for copyright violation.

You can always write a documentation and reply to mail asking for help
by pointing to your documentation. That's an easy way out.

> Why would I want to randomly sue users of application X? I don't know.
> Maybe I have Application Y that competes with X, and I want people to
> stop using X. Whatever. The point is that, by using Application X
> under the STWL, users are opening themselves up to a whole can of
> worms.
> 
> Yes, if everyone were moral and reasonable, this should not be a
> problem. But the law does not exist to suggest behaviors to those who
> are moral and reasonable. It exists as the last bastion of civilized
> conduct -- as an alternative to all-out tribal warfare -- that applies
> under all circumstances to all people, whatever their disagreements
> may be.

You are right that the law should be a last resort, but appart from the
fact that this is not how we use the law today we are used to hiding the
spirit of a contract, which is really the important part of a contract
behind clauses that are written by lawyers and are interpreted by judges
to regain the intention of the contract (or the law). My opinion is that
the intention of the contract should be the priority in a contract and
that the intention should be made obvious even if parts of the intention
cannot be enforced by a court.

Since this makes a major difference in the design of licenses I propose
to add a paragraph to licenses which clearly states the intention in
easy to understand words and to make all clauses subordinate to the
clearly formulated spirit of the contract.

> Hope this helps. Peace,

Yes, thank you, your reply was very helpful in guiding my thoughts
on the topic.

kind regards,
Bernhard

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Why don't you slaughter an animal yourself? (This is the intention
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