Subject: Re: For Approval: Microsoft Permissive License
From: Donovan Hawkins <hawkins@cephira.com>
Date: Sun, 9 Sep 2007 09:07:27 -0700 (Pacific Daylight Time)

On Sun, 9 Sep 2007, Eugene Wee wrote (quoting Licensing HOWTO):

> In practical terms, this means that some license upgrades are legally safe.
...
> Note, however, that an `upgrade' from a copyleft license to a non-copyleft 
> license (or vice-versa) would be a different matter. If you are a GPL 
> partisan, you would be injured by a move to a non-GPL license, and 
> vice-versa.

In other words, you can add restrictions but not remove them...you can 
move only to a compatible license. That is not the case with GPL v2 -> v3.


> These changes are not safe and could be causes of legal action 
> for copyright infringement by a holder of registered copyright (who therefore 
> does not have to meet the actual-damages test). Holders of unregistered 
> copyright would have no standung except by registering the copyright after 
> the fact of infringement, and then would have to meet the difficult 
> actual-damages standard.

So they might be unable to win in court if they didn't register the 
copyright on their contributions because they can't show damages. Of 
course, if they somehow gained legal exposure and got sued because the new 
license had a faulty disclaimer, you could be sued because then they have 
ACTUAL damages.


I can't speak for every open source developer, but there is no way in heck 
I'm getting myself on the hook based on the advice of Internet IANAL's 
(and the occasional real lawyer), none of whom I can sue for incompetance 
if they are wrong. I'm not converting licenses to ones which are logically 
incompatible just because someone thinks they are "close enough", any more 
than I would rely on implicit rights grants to convert to a license with 
explicit rights grants.

On top of all that, it's not ethically right to change license terms in a 
way that you were not granted permission for without asking (especially 
if you'd like to keep getting contributions). I suspect that is the reason 
Linus Torvalds would give you for why he has said he would have to get 
permission.

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Donovan Hawkins, PhD                 "The study of physics will always be
Software Engineer                     safer than biology, for while the
hawkins@cephira.com                   hazards of physics drop off as 1/r^2,
http://www.cephira.com                biological ones grow exponentially."
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