Subject: RE: For Approval: Some License Or Another
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 30 Nov 2004 00:20:40 -0800

 Tue, 30 Nov 2004 00:20:40 -0800
Axel Metzger wrote:
> I hope you don't mind my clear words. I am trying since five years to
> convince the FSF to take into account the legal problems the GPL has under
> German and European law while writing the GPL V3. My experience is: You
> cannot really influence them. It's like in some comments on this list. Eat
> it
> like it is or stay hungry. Free Software/Open Source Software people from
> the
> US often have a unilateral way of thinking. It's a lack of political
> wisdom.
> Creative commons is the smarter project. They have started to build
> coalition
> with Europeans. Today I'm convinced that it is not only necessary for the
> GFSL people to have a license that is feasible under German/European law.
> It
> is necessary for them to have the power to change the license if
> necessary.

I didn't mind your clear words, and I hope you won't mind mine....

Many people disagree with you that the GPL or other open source licenses
have problems under German law. Perhaps that's one reason why you're having
so much difficulty convincing the FSF and others of the value of your
license. And even if you convince the OSI board to approve your license, it
is likely not to be widely adopted, at least in part because others like FSF
won't support you.

So we'll end up with another license that is incompatible with most of the
others, with a tiny community of adopters. You applaud Creative Commons for
building a coalition with Europeans, and I agree that's a good thing. But
you are doing the opposite: Setting off in a new direction because you've
not been able to build a coalition with any existing license author.

Here, for the record, is a copy of an email I received about your license
yesterday. I have the author's permission to quote it. Would you consider
the possibility that you been trying for five years to convince the FSF of
something that isn't really a legal problem at all?

>>I'm from Europe (Finland) and happen to know these german guys who are 
>>trying to get their new license accepted. As a Finnish lawyer I feel 
>>most open source licenses are applicable etc all over Europe as in the 
>>US (Artistic may be problematic). My german friends have this idea 
>>that the licenses may fail because:
>>
>>1. They think there are no copyright licenses in continental
>>	Europe, just contracts
>>2. They think language matters: consumer contracts must be in
>>	local language, otherwise liability & warranty disclaimers may
>>	not apply
>>3. They think some EU law rules regarding again consumer contracts 
>>require you to get some limited responsibility for the code you 
>>publish (and "consumers" might use) -- an unlimited warranty may be 
>>found to be invalid in court
>>
>>It is true that Europe has many national jurisdictions and there are 
>>indeed some obscure consumer protection rules placed upon us by EU. 
>>However, in most cases when it really matters - we are talking about 
>>commercial use - I don't think any of the above applies. In fact, 
>>these same german guys managed to enforce GPL in a German court in a 
>>dispute between two companies just some months ago.

Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen@rosenlaw.com