Subject: Re: For Approval: Microsoft Permissive License
From: "Chris Travers" <chris.travers@gmail.com>
Date: Sun, 9 Sep 2007 11:43:46 -0700
Sun, 9 Sep 2007 11:43:46 -0700
On 9/9/07, Donovan Hawkins <hawkins@cephira.com> wrote:
>
> 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.



Agreed.  I see no reason to assume that ESR's comments (IANAL, HINALE),
pertain to the GPL2->GPL3 upgrade.  After all, these licenses are
fundamentally different and offer mutually exclusive sets of restrictions.
For example, the anti-tivoization provision would not be acceptable under
the GPL2, nor would the patent license termination clause.

Even the FSF notes that one cannot just upgrade a GPL2-only program to GPL3
just because you want to.

> 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.


Hmmm.... If there was a faulty disclaimer that was changed, it wouldn't be
the initial programmer's fault.  IANAL, but I think that the fualty
disclaimer would make the one who changed it liable for the other
programmer's mistakes in the first place.  (of course, you might still be
right about legal expenses).

Bottom line-- probably a good idea to get permission?

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.



Heck, I would try to get unbiased legal help from outside the community
before I would make a license change at all (possibly in addition to help
from inside the community).


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.



I think there is another issue here:

Can you win in court?
Do you even want to try?

IANAL, but I suspect that a lot of this comes down to the second question.
Most of us do *not* want to go to court, and we rely on lawyers to help keep
us from having to try to win in court.  This means we steer clear of any
area where a reasonable argument could possibly be made  against us.

Most of us feel that the instant we step into court, we have already lost
things which cannot be replaced (time, effort, opportunity).

Hence legally safe means something other than "could win in court if it came
to that."

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).



Heck, I think it is ethically questionable to change licenses without
overwhelming reason anyway.  Just because the Apache HTTPD project could
decide tomorrow to switch to the GPL3 doesn't mean that they should.  Doing
so would undercut a number of large contributors in the community.


I suspect that is the reason
> Linus Torvalds would give you for why he has said he would have to get
> permission.



That and the license incompatibilies?

Best Wishes,
Chris Travers




On 9/9/07, Donovan Hawkins <hawkins@cephira.com> wrote:
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.


Agreed.  I see no reason to assume that ESR's comments (IANAL, HINALE), pertain to the GPL2->GPL3 upgrade.  After all, these licenses are fundamentally different and offer mutually exclusive sets of restrictions.  For example, the anti-tivoization provision would not be acceptable under the GPL2, nor would the patent license termination clause.

Even the FSF notes that one cannot just upgrade a GPL2-only program to GPL3 just because you want to.

> 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.

Hmmm.... If there was a faulty disclaimer that was changed, it wouldn't be the initial programmer's fault.  IANAL, but I think that the fualty disclaimer would make the one who changed it liable for the other programmer's mistakes in the first place.  (of course, you might still be right about legal expenses).

Bottom line-- probably a good idea to get permission?

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.


Heck, I would try to get unbiased legal help from outside the community before I would make a license change at all (possibly in addition to help from inside the community).
 

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.


I think there is another issue here:

Can you win in court?
Do you even want to try?

IANAL, but I suspect that a lot of this comes down to the second question.  Most of us do *not* want to go to court, and we rely on lawyers to help keep us from having to try to win in court.  This means we steer clear of any area where a reasonable argument could possibly be made  against us.

Most of us feel that the instant we step into court, we have already lost things which cannot be replaced (time, effort, opportunity).

Hence legally safe means something other than "could win in court if it came to that."

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).


Heck, I think it is ethically questionable to change licenses without overwhelming reason anyway.  Just because the Apache HTTPD project could decide tomorrow to switch to the GPL3 doesn't mean that they should.  Doing so would undercut a number of large contributors in the community.
 

I suspect that is the reason
Linus Torvalds would give you for why he has said he would have to get
permission.


That and the license incompatibilies?

Best Wishes,
Chris Travers